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Hooker, C. J.
Semira Mary Perrin is the widow of Joel J. Perrin, who died without issue. His will provided that his wife, Semira, should have all the household property, horses, carriages, etc., $20,000 in cash and mortgages, and the use during her natural life of his homestead in Kalamazoo, appraised at $16,000, and a store property on Main street, in said city, appraised at $16,000; and' a provision was inserted in the will that these provisions to Mrs. Perrin should, if accepted, be in full of all dower rights and in full of all her rights in the property of the deceased. Substantially all the residue of his estate was willed to his kindred. The estate inventoried:
' Real Estate..............-........-...........$100,250 00
Personal estate .......-....................... 133,116 77
Total...................................$233,366 77
The widow filed in probate court her election to take under the statute, rather than under the will, and claimed that she was entitled to one-half of the real estate of the deceased in fee, under the statute of descent of real property {3 Comp. Laws, § 9064), which provides that:
-“Section 1. The People of the State of Michigan enact: When any person shall die seised of any lands, tenements, or hereditaments, or of any right thereto, or entitled to any interest therein, in fee simple or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts, in the following manner.”
Subdivision 2 provides that:
“If the intestate shall leave a husband or widow, and no issue, one-half of the estate of such intestate shall descend to such husband or widow. * * * The provision herein made for the widow shall be in lieu of dower, unless she shall, within one year after the appointment of an administrator of the estate of the intestate, begin proceedings for the assignment to her of dower in the intestate’s estate, in which case her interest in such real estate shall be limited to her dower therein, and the residue of such estate shall then descend as herein provided for the portion thereof not taken by such widow.”
The executor was in doubt as to the validity of this claim, and has filed the bill in this cause to settle the widow’s right under her election. His contention is that a husband has the right to dispose of his property by will, and may thereby prevent the application of the statute of descent, and that the wife has no greater immunity, under the statute of descent, from having her inheritance forestalled and taken from her by a will, than any other person entitled to inherit thereunder.
The right to dower rests upon 3 Comp. Laws, § 8918, which provides that:
‘ ‘ The widow of every deceased person shall be entitled to dower, or the use, during her natural life, of one-third part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof.”
And section 8935 provides that:
‘ ‘ If any lands be devised to a woman or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised or the provision so made, or whether she will be endowed of the lands of her husband; but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.”
His claim is that, while the widow might lawfully decline to take under the will, she did not thereby become entitled to the share which, in the absence of a will, she could claim under the statute of descent, but only to her statutory right of dower, which would be the use of one-third of the real estate during her life. We understand that this raises the only question in the case, the' personal property not being in controversy. The learned circuit judge sustained the contention of the executor, and the widow has appealed.
By the provision of section 9064, subd. 2, a widow may, under some circumstances, inherit half of the husband’s lands if he dies intestate; but this inheritance is in lieu of dower, and will be cut off if she shall choose to take proceedings to recover her dower. The only object of reserving to her the right of election in the case that suggests itself is protection against loss arising from her husband’s debts, to which anything that she may inherit is subject, ■while her dower right and statutory allowances are not affected by this. The power of a husband to defeat an inheritance by will is not limited. He may cut off his issue from the benefits of the statute of descent, and his wife is subject to similar treatment, unless we are to say that the legislature intended an exception in her case. He cannot compel her to accept under the will, but, if she does not, she must content herself with being “endowed of her husband’s lands.” What is meant by being endowed of the lands of her husband is indicated by the further provision, viz., “ But she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.” This recognizes that the husband may choose to make a provision for her in addition to that called “endowment of his lands,” and to our minds indicates that such endowment is the provision made by law by way of dower, and not that made by the statute of descent. Dower has a settled meaning. It is a life estate, and both at common law and by statute attaches to one-third of the real estate, and has no reference to personal property.
Counsel for the defendant urge upon us the broad definition of dower, — i. e., “the provision which the law makes for a widow, out of the lands or tenements of her husband, for her support and the nurture of her children,” — and insist that any provision that the law may make for her from her husband’s estate is dower under this definition. It is possible to say so, but, if we do, it is an enlargement of a well-settled legal term, and might be said to extend .to personal property as well as real. We are bound by statute to interpret the words of legislative enactments according to their settled meaning, unless an intent to give them another meaning is obvious. The case cited by counsel of Hendrick v. Cleaveland, 2 Vt. 329, supports this view; also Billings v. People, 189 Ill. 472 (59 N. E. 798). The question has never been distinctly raised in Michigan until now, but the cases of Miller v. Stepper, 32 Mich. 201, and In re Bloss’ Estate, 114 Mich. 204 (72 N. W. 148), are, in our opinion, indicative that the views expressed are in harmony with the opinions heretofore entertained by the court upon the subject.
The decree is affirmed, with expenses of both courts to the-executor, payable from the estate.'
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Hooker, C. J.
The plaintiff was an employe of the defendant mining company, and, on the day of the accident out of which this case grows, was engaged, with others, in timbering the mine. One Peterson, who was the timber boss, sent some plank down an inclined shaft of the mine. The evidence shows that the course taken was to take a half hitch with a rope around each end of the plank, the lower hitch being secured by a 10-penny nail driven above it. The shaft was not of uniform grade, and at the depth of 60 or 70 feet the plank escaped from the rope, and fell or slid to the bottom of the shaft, injuring the plaintiff and another who was at work with him. The learned Circuit judge who tried the case directed a verdict for the defendant on the following grounds: (1) That it appeared by the uncontradicted testimony that the method adopted for lowering the plank was the customary one among miners; (2) that the timber boss, Peterson, was a fellow-servant of the plaintiff, and that the defendant had furnished suitable tools and materials for the lowering of the plank, and that the negligence, if there was any, was that of Peterson, and consequently plaintiff could not recover.
The plaintiff testified that it was usual in mines to use a timber .hitch for sending down plank; that big timbers were sent down with a dog or clevis; and that he had seen plank sent down with these. August Oman testified that he knew the customary way of fastening the rope onto timbers and planks to lower them into a shaft; that he had worked with the timber gang for a couple of weeks, and saw how they sent them down; that they got a timber dog, and put a half hitch on the stick of timber, when they sent them down; that, if they do not use that, they bore holes through, and put a bolt through and chain it. He never saw them send down timbers simply tied with rope around the plank, without any bolt or hook. Charles Johnson testified:
“I have worked a good many years in mines, and at timbering some. I know the customary way of securing planks so as to send them down a shaft. They generally used to .bore a hole through to send a plank down, or either have a clevis, and put it through, and then tie it with a rope. If they don’t have that, they just bore a hole through, and put a rope through it, or else they used to use timber dogs with timbers.”
There was much testimony offered by the defendant, from miners of long experience, that the timber hitch was the customary way for lowering planks into a mine, but the testimony quoted raised a question of fact for the jury.
The undisputed testimony shows that Peterson, the timber boss, was a fellow-servant of plaintiff, but the plaintiff claims that the defendant failed to furnish him with augers for the purpose of boring holes into the planks. There was testimony on the part of the defendant that augers were furnished; that the tools were kept in the warehouse, and were at the command of the timber boss at any time that he chose to get them; that they were in the habit of going to the warehouse for such tools as they needed to use. In contradiction of this there is the testimony of Oman, who testified that there was a box near the shaft where they put tools that were in use, and that he had looked in the box on several occasions, and had never seen any augers in it. There was the testimony of Peterson that he did not use ány augers; that there were some bits in the box, but not large enough to bore holes of sufficient size in the plank; that he never took the trouble to look in the warehouse for augers, because he thought the half hitch the usual and safe method of lowering timber. Neither the testimony of Oman nor that of Peterson in any way contradicts the clear testimony that' augers of proper size were to have been had at the warehouse, where Peterson and all other employés were in the habit of getting tools when needed. We think, therefore, the circuit judge did not commit error in holding that the undisputed evidence showed that the defendant furnished the proper tools, and that the neglect to use them was the neglect of Peterson, a fellow-servant. It was therefore unnecessary to submit the first question discussed to the jury, as the latter was conclusive of the case.
The judgment is affirmed.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
(after stating the facts). The defendants seek to give the case the color of an absolute purchase by Salmon and a sale to Mrs. Ockerman, and contend that there was nothing in the relation of Mrs. Ocker-man to the mortgaged property which incapacitated her from becoming a purchaser of the tax title, as she was not bound by the covenants of the mortgage. We do not find it necessary to enter into any extended discussion of the law of the case on the assumption, that Mrs. Ocker-man was the real purchaser. It is true the parties sought to give the transaction that complexion, but we do not so find the fact. The testimony shows that Ockerman himself negotiated the purchase from Brown, and it also appears by defendant Salmon’s own testimony that Ockerman has repaid him the purchase price, in large part. We are fully satisfied, therefore, that this transaction was one in the interest of Ockerman, and that he has furnished all the funds which have been applied to the repayment of Salmon.
The only doubt we have is as to whether Salmon has been fully repaid. The facts relating to this question rested peculiarly within the knowledge of Salmon himself, and he, while admitting that he had received $50 to $75, was unable to tell whether Ockerman had, in addition, paid, in expenses of litigation, — which were, by agreement, to be applied upon the purchase price, — enough to satisfy the remainder of the purchase price. Under these circumstances, we are not disposed to disturb the decree below.
Decree affirmed, with costs.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). While there-are 49 assignments of error, the questions upon which the-right of recovery turns are but few, and depend almost entirely upon the construction to be placed upon the contract.
It is contended by counsel for the defendant that by the contract plaintiff was bound to manufacture the lumber at its mill, while plaintiff insists that it was at liberty to obtain the lumber where it chose, so long as it was of the character and kind specified in the contract. The contract contains no language indicating a contract to-manufacture the lumber at the plaintiff’s mill. Plaintiff’s contract was to furnish to the defendant 4,000,000 feet of' lumber. To “furnish” does not mean to manufacture. It is a fair construction, from the use of the word, that plaintiff desired to guard against many contingencies that might arise if it agreed to manufacture the lumber at its-own mill. The mill might burn, other accidents might happen, or other things occur which would render it impossible for plaintiff to execute the contract. If it contracted to manufacture without guarding against such contingencies, it would be bound by its contract to do so. The contract is too plain to require construction. Plaintiff had the right under it to manufacture or buy the lumber for the defendant. Its contract was to furnish, not to manufacture.
It is next contended that the plaintiff was under-obligation to cross-pile all the lumber in its yard, to do this by Sfeptember 1st, and that defendant was under no-obligation to accept or ship any of the lumber until after- that date, and it was all piled in the yard ready for shipment. We are of the opinion that this construction should not be placed upon the contract, and that the defendant obligated itself to accept and have the lumber shipped in vessel lots as soon as sufficient had been piled for that purpose for 60 days. The capacity of plaintiff’s mill was 100,000 feet per day. The capacity of its yard in the vicinity of its mill was about 4,000,000 feet. But 5,000,-000 could be piled upon its grounds by moving lumber a half a mile. The capacity of the mill for this season would have been over 20,000,000 feet. Defendant knew that plaintiff was manufacturing other lumber in large ■quantities. The letters and conduct of both parties show that the contract was so understood.
It is next urged that if this contract was divisible, and defendant was bound to accept it in cargo lots, each cargo should contain proportionate quantities of each kind of lumber. Counsel cite Crowl v. Goodenberger, 112 Mich. 683 (71 N. W. 485), as sustaining this contention. If this were an indivisible contract, and plaintiff had bound itself to furnish the entire amount before any was shipped, ■that case would apply and be controlling. In that case it was held that the defendant was “bound to tender the whole amount of the lumber, as plaintiff was not bound to accept a part only.” In this case, as above stated, defendant was bound to accept it in parts. Plaintiff would have performed its contract by furnishing the proper quantities of the various kinds before the time fixed for its completion. If defendant had directed the proportions to be furnished for each cargo, a different question would be presented.
It is next contended that it was the duty of the plaintiff to have all the lumber cross-piled and ready for shipment on September 1st, notwithstanding that the defendant had asked not to have the lumber shipped as provided, and had requested plaintiff to consent to delay. We cannot concur in this view. On account of the dullness of the market, and probably the fall in price, defend ant asked forbearance on the part of the plaintiff in holding it to shipments as the contract required. This was evidently granted. It undoubtedly changed the obligation of each party to the contract. Defendant obtained a waiver of the time for shipment, which was made definite-by the contract. Under this modification it would have a reasonable time in which to ship. It must follow that the contract was also modified in regard to the time of furnishing. Defendant had delayed shipping for three months, and now seeks to repudiate the contract because on September 1st plaintiff did not have the entire amount on hand to ship. Under plaintiff’s testimony, it could have furnished the balance of the lumber in a very short time, and not have delayed the defendant in the shipment of it, even if it could have shipped the entire amount between September 1st and November 1st, — a matter of considerable doubt under the evidence.
Upon the trial counsel for defendant conceded the-rule of damages applicable to the case to be the difference between the market and the contract price. Thus by the-consent of both parties the case was submitted to the jury upon that theory. Counsel made a motion for a new trial, alleging as an error that this direction did not state the correct rule of law as applicable to the lumber which-plaintiff did not have on hand at the time of the breach of the contract, and which it would have been compelled to obtain by purchase, but that the rule would be the differerence between the contract price and the cost of purchasing and delivering the same in its yard at Empire. The-court refused the motion. We do not think that, where the question was submitted to the jury by the consent of both parties as to the rule of law, the winning party should be put to the expense of a new trial, even if the direction were wrong, upon which we express no opinion. We concur in the conclusion of the court below in refusing a new trial.
Judgment affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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V. J. Brennan, J.
This is a wrongful death action arising from a car-truck accident which occurred on highway 280 south of Toledo, Ohio, on July 29,1964. The deceased, Arthur Odell Cannon, was the passenger in a car driven by Felix Walls; he was a resident of Detroit, Michigan.
The complaint in this case was filed on behalf of Margie Cannon as administratrix of the estate of the decedent; James and Margie Cannon as the parents of decedent; Jacqueline Kay Allen as decedent’s posthumous illegitimate child; and Gladys Allen as the intended wife of the deceased. This suit came to trial as a consolidated case with Walls v. Transamerican (see footnote 1, supra). Before selection of the jury, defense counsel made a motion to dismiss all parties plaintiff except the administratrix of decedent’s estate. Defendant argued that under the Ohio wrongful death statute the only proper plaintiff is the administratrix of decedent’s estate. The court subsequently granted defendant’s motion and at the same time denied plaintiffs’ motion to amend their pleadings to include a claim of damages for the pain and suffering decedent endured between the accident and his death.
Plaintiffs appeal these rulings and raise three issues which we shall deal with ad seriatim. Plaintiffs first argue that it was error for the trial judge to dismiss all parties except the administratrix upon an oral motion made on the date of trial since defendant made no attack against the pleadings prior to that time. We find no error. “Parties may be added or dropped by order of the court on motion of any party * # * at any stage of the action and on such terms as are just.” GCR 1963, 207.
Plaintiffs also argue that it was unfair of the trial court to refuse to permit plaintiffs to amend their pleadings to include the suffering borne by decedent prior to his death. Such matters rest with the discretion of the trial judge. GCR 1963, 118.1. We do not feel that it was an abuse of discretion to deny the motion given that it was made when the case came up for trial. Upon remand following this decision the circumstances will be changed and the trial judge would again be free to exercise his discretion should a similar motion be made. We note that GCR 1963, 118.1 provides that such motions should be freely granted.
The final assignment of error involves the status of the alleged posthumous illegitimate child of decedent. This argument raises serious constitutional questions which were not briefed by either party, but which, in the interest of justice, we feel compelled to consider.
The Ohio wrongful death act (Ohio Revised Code § 2125.02), under which this suit was brought, provides in pertinent part:
“An action for wrongful death must be brought in the name of the personal representative of the deceased person, but shall be for the exclusive benefit of the surviving spouse, the children, and other next of kin of the decedent.”
In order to determine the status of the alleged posthumous illegitimate child of decedent, we must resolve two issues: first, whether, in Ohio, a child may bring suit for injuries which are alleged to have occurred prior to his birth, and, second, whether the fact of the child’s illegitimacy will preclude it from recovering for the wrongful death of its father.
Regarding the first issue, the Ohio courts have held that an action may he maintained for the wrongful death of a viable unborn child which is subsequently stillborn as the result of prenatal injuries. Stidam v. Ashmore (1958), 109 Ohio App 431 (167 NE2d 106). An action will also lie for the wrongful death of a child who died after birth, as a result of prenatal injuries. Jasinsky v. Potts (1950), 153 Ohio St 529 (92 NE2d 809). Also, an unborn viable child injured by another’s negligence, may, after birth, maintain an action for such injury. Williams v. Marion Rapid Transit, Inc. (1949), 152 Ohio St 114 (87 NE2d 334). It is therefore clear that in Ohio, a child does have a cause of action for injuries sustained prior to his birth.
On the basis of these holdings by the Ohio courts, it is clear that if the child here in question had been a posthumous legitimate child of decedent, he would have been a proper beneficiary under the Ohio wrongful death statute.
Having determined that the fact that the child is posthumous is not a bar to his status as a beneficiary under a wrongful death action in Ohio, we must now consider the second issue: whether the fact of his illegitimacy will bar his recovery under such a suit. In a case directly on point, the Court of Appeals of Ohio determined that the word “children” within the wrongful death statute referred only to legitimate children, and therefore a posthumous illegitimate child was not entitled to participate in an action for the wrongful death of its putative father. Bonewit v. Weber (1952), 95 Ohio App 428 (120 NE2d 738).
However, the Supreme Court of the United States has recently held that it is a violation of the Equal Protection Clause of the Fourteenth Amendment for a state’s wrongful death statute to deny illegiti mate children a cause of action for the wrongful death of their mother while granting such an action to legitimate children. Levy v. Louisiana (1968), 391 US 68 (88 S Ct 1509, 20 L Ed 2d 436). In a companion case the Court also held that it was a denial of equal protection for a state to deny the parents of illegitimate children a cause of action for the wrongful death of such children, while granting parents a cause of action for the wrongful death of legitimate children. Glona v. American Guarantee & Liability Insurance Company (1968), 391 US 73 (88 S Ct 1515, 20 L Ed 2d 441).
Scarcely one month after these decisions by the United States Supreme Court, the Supreme Court of Ohio ruled that an illegitimate child does not have a right to support from its putative father. In reaching this decision, the Ohio Supreme Court ruled that the Levy case was limited to the mother-child relationship, and was therefore inapplicable in a case regarding the rights of an illegitimate child against its putative father. Baston v. Bears (1968), 15 Ohio St 2d 166 (239 NE2d 62). The majority in that case was a narrow four to three, with the three dissenting justices strenuously arguing that compelling a father to support his legitimate children, while not compelling him to support his illegitimate children, denied equal protection of the laws to such illegitimate children in violation of the Fourteenth Amendment.
Subsequent comments upon, and constructions of, the Supreme Court’s decisions in Levy and Glona lends support to the argument made by the minority in Bastón. Two subsequent comments on the Levy decision by Mr. Justice Douglas, the author of the majority opinions in both Levy and Glona, and one subsequent comment on the Levy decision by Mr. Justice Marshall make it clear that Mr. Justice Douglas did not intend that those decisions should be read to refer solely to the mother-child relationship, but rather that they should be read to mean that discrimination between children solely on the basis of their legitimacy or illegitimacy is an invidious discrimination and contrary to the Equal Protection Clause of the Fourteenth Amendment. In King v. Smith (1968), 392 US 309, 336 (88 S Ct 2128, 20 L Ed 2d 1118), Mr. Justice Douglas stated:
“The other day in a comparable situation we held that the Equal Protection Clause of the Fourteenth Amendment barred discrimination against illegitimate children. We held that they cannot be denied a cause of action because they were conceived in ‘sin,’ that the making of such a disqualification was an invidious discrimination. Levy v. Louisiana [citation omitted].”
In Dandridge v. Williams (1970), 397 US 471, 523 (90 S Ct 1153, 25 L Ed 2d 491), Mr. Justice Marshall stated:
“Indeed, governmental discrimination between children on the basis of a factor over which they have no control — the number of their brothers and sisters — bears some resemblance to the classification between legitimate and illegitimate children which we condemned as a violation of the Equal Protection Clause in Levy v. Louisiana.”
Finally, in United States v. Vuitch (1971), 402 US 62, 78 (91 S Ct 1294; 28 L Ed 2d 601, 613), Mr. Justice Douglas cited Levy as applying to “the intimate familial relations between children and parents.” (Emphasis added.)
Furthermore, the Supreme Court’s decision in Levy has been cited as authority for the proposition that an illegitimate child may not be denied a cause of action for the wrongful death of its father merely because it is illegitimate; Hebert v. Petroleum Pipe Inspectors, Inc. (CA 5, 1968), 396 F2d 237; Schmoll v. Creecy (1969), 54 NJ 194 (254 A2d 525); and it has also been cited as support for the proposition that to deny an illegitimate child a cause of action for support against its putative father merely because it is illegitimate also violates the Equal Protection Clause; Munn v. Munn (1969), 168 Colo 76 (450 P2d 68); R- v. R- (Mo, 1968), 431 SW2d 152; Storm v. None (1968), 57 Misc 2d 342 (291 NYS2d 515).
We therefore conclude that the interpretation placed upon the Levy decision by the Supreme Court of Ohio in Bastón was erroneous. It is clear, both from the subsequent comments of Mr. Justice Douglas, and from subsequent interpretations of the Levy decision by other courts, that the United States Supreme Court’s decision in that case is not limited to the rights of illegitimates in relation to their mother, but rather stands for the proposition that distinguishing between the rights of children on the basis of their legitimacy or illegitimacy with regard to either parent is an invidious discrimination and runs afoul of the Equal Protection Clause of the Fourteenth Amendment. We are of the opinion that had this case arisen in the courts of Ohio, the courts of that state would have decided not to follow the rule of the Bastón case, and would grant the illegitimate child a cause of action for support against its putative father, and by the same token a cause of action for the wrongful death of its putative father.
However, such a conclusion does not form an essential part of our decision here. The courts of this state are not bound by the Full Faith and Credit Clause of the United States Constitution to recognize a cause of action which is permissible in another state, but which runs afoul of the public policy of this, state. Kircher v. Kircher (1939), 288 Mich 669. By the same token we would not be bound to deny a cause of action to an individual where such a denial would violate the public policy of this state. We feel that to deny an illegitimate child a cause of action for the wrongful death of its father where a legitimate child is granted such a cause of action does violate the public policy of the State of Michigan. Furthermore, while we are bound to accept the interpretation another state places upon its statutes, we are not bound to accept that state’s interpretation of the United States Constitution. Pursuant to the Supremacy Clause of the United States Constitution, we could not enforce a foreign statute in a manner which would violate the United States Constitution. We feel the denial of a cause of action to an illegitimate child for the wrongful death of its father, on the basis of the child’s illegitimacy, violates the Equal Protection Clause of the Fourteenth Amendment. We therefore rule that in suits in this state under the Ohio wrongful death statute, an illegitimate child does have a cause of action for the wrongful death of its father, and is therefore a proper beneficiary under the cause of action brought by the administrator of decedent’s estate.
Since both the child’s mother and its putative father were residents of this state, we further hold that the paternity of the child should be established according to the laws of Michigan.
Reversed and remanded.
All concurred.
The circumstances of this accident are irrelevant to our disposition of this case. They are fully set forth in our opinion in the companion case of Walls v. Transamerican Freight Lines (1971), 37 Mich App 307, which arose from the same incident.
The case was tried under the law of Ohio. No argument regarding the propriety of the application of Ohio law is raised. | [
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Memorandum Opinion. Defendant was tried and convicted of assault with intent to rob being armed 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 pleaded guilty to a charge of escape from the Detroit House of Correction, and appeals. A motion to affirm has been filed by the people.
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. | [
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Lesinski, C. J.
Defendant William McCaleb was convicted by a jury of the crimes of carnal knowledge of a female over 16 years, MCLA 750.520; MSA 28.788, and committing an act of gross indecency between a male and a female, MCLA 750.338(b); MSA 28.570(2). He appeals as of right.
Defendant contends that it was reversible error for the trial court to instruct the jury that as a matter of law the act of fellatio is prohibited by the gross indecency statute, rather than leaving that determination to the jury as a basic element of the crime to be ascertained by the trier of fact.
The gross indecency statute does not define what constitutes its violation due to the indelicacy of the subject matter. The statute states:
“Any male person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a female person shall be guilty of a felony, punishable as provided in this section. Any female person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a male person shall be guilty of a felony punishable as provided in this section. Any person who procures or attempts to procure the commission of any act of gross indecency by and between any male person and any female person shall be guilty of a felony punishable as provided in this section. Any person convicted of a felony as provided in this section shall be punished by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life.”
This Court was called upon to interpret a similar statute, gross indecency between two male persons, MCLA 750.338; MSA 28.570, in People v Dexter, 6 Mich App 247 (1967).
In Dexter, we did not hold that as a matter of law fellatio is prohibited by the gross indecency statute. "What this Court did in Dexter was affirm a jury’s determination as trier of fact that the act of fellatio violated the gross indecency statute. Dictum from People v Schmitt, 275 Mich 575, 577 (1936), was cited in Dexter at 250, for the proposition that “fellatio is prohibited by the gross indecency statute”. This statement, however, fails to tell us whether fellatio is prohibited as a matter of law or only upon jury determination. This statement in Schmitt relied on People v Swift, 172 Mich 473 (1912), for its authoritative basis. Swift, however, was a jury case in which the trier of fact determined in the first instance that the gross indecency statute had been violated. It is to be noted that nowhere in Swift is fellatio mentioned as the type of conduct prohibited by the act. Dexter and Schmitt, resting as they do on Swift, thus fail to resolve the issue posed by the case at bar.
This Court, in Dexter, p 252, held that the gross indecency statute was not unconstitutionally vague when the standard of People v Hicks, 98 Mich 86, 90 (1893), was applied. In Hicks, the Michigan Supreme Court stated what that standard is:
“In this case, as in State v Millard, 18 Vt 577, it may be said that ‘no particular definition is given by tbe statute of what constitutes this crime. The indelicacy of the subject forbids it, and does not require of the court to state what particular conduct will constitute the offense. The common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.’ ”
In People v Noyes, 328 Mich 207, 211 (1950), the defendant was charged with taking indecent liberties with a child under the age of 16 under a statute, MCLA 750.336; MSA 28.568, which, like the gross indecency statute, does not describe the conduct it prohibits. The Michigan Supreme Court in that case specifically approved a charge based on the language quoted from Hicks, which left the determination of whether defendant’s actions constituted indecent liberties to the jury as the trier of fact.
In People v Brandt, 18 Mich App 267, 270 (1969), another indecent liberties case, Judge J. H. G-illis in his dissent relied on Hicks and Noyes for the proposition that:
“Whether defendant’s conduct in the instant case ‘is not such a variation from permissible noncriminal conduct to justify characterization of the defendant’s action as violative of this statute’ is a question for the trier of fact.”
The majority in Brandt, while stating that they felt this determination was one of law, nevertheless qualified this view in footnote 2 of their opinion by distinguishing this case, in which a judge served as trier of fact, from one in which a jury was present. The Court stated at 269-270:
“In this connection we note that in the cases relied on by the people the meritorious issue was de cided by a jury and not by a trial judge. As we observed in Humphrey v Swan (1968), 14 Mich App 683, 686:
“ ‘Appellate courts traditionally exercise a broader review of judges’ decisions than of jury verdicts.
“ ‘ “A jury’s verdict-view of facts is entitled to an even higher degree of appellate respect than is a judge’s verdict-view of the same facts, learned through [sic] the judge may be in law. For reasons known well to students of American history, a finding of fact by ‘the twelvers’ is more apt to be sound than that of one man.” Schneider v Pomerville (1957), 348 Mich 49, 54.’ ”
Thus it appears that if the trier of fact in Brandt had been a jury instead of a judge, the majority would have subscribed to Judge (Allis’ interpretation of the statute.
In the case at bar the trial judge charged the jury:
“Now count number II in this information is a count which is commonly known as gross indecency. Now this section as I have read it to you penalizes conduct that is of such a character that common sense of society regards it as indecent and improper. Penetration of the male penis into the mouth of a, female constitutes the offense whether by force or by consent or agreement.”
The jury’s function in this case as the trier of fact was to determine that (1) defendant had engaged in fellatio with a female, and (2) fellatio between a male and a female is conduct which the common sense of society regards as indecent and improper. The effect of the trial judge’s charge was to eliminate the second element of the crime, “whether the conduct was indecent,” from the purview of the jury. In so doing, defendant was effectively denied a trial by jury on this count.
The people contend that defendant’s failure to object to this charge at trial waives any objection he might have on appeal. While this is the general rule, the Michigan Supreme Court in People v Liggett, 378 Mich 706, 714 (1967), stated:
“It is settled law of this State that the trial judge should instruct the jury in criminal cases as to general features of the case, define the offense and indicate that which is essential to prove to establish the offense, even in the absence of request. A case may be reversed because the charge omits a legally essential ingredient. People v Prinz, 148 Mich 307 [1907]; People v Kanar, 314 Mich 242, 254 [1946]; People v Hearn, 354 Mich 468 [1958]. Similarly, without a request, a case may be reversed because of an erroneous or misleading charge as opposed to one which merely omits a pertinent though not legally necessary point. People v MacPherson, 323 Mich 438, 448, et seq [1949]; People v Guillett, 342 Mich 1, 7 [1955]; People v Oberstaedt, 372 Mich 521, 526 [1964]. Defendant has a right to have a properly instructed jury pass upon the evidence. People v Visel, 275 Mich 77, 81 [1936].”
An essential element of the crime having been removed from the jury’s consideration, we are faced with a situation in which People v Liggett, supra, is directly applicable. Consequently, defendant’s failure to object did not waive this error on appeal.
Defendant next contends that it was reversible error for the trial court to instruct the jury, following an objection by the people to an inference made during closing argument of the defense, that:
“The presumption is that the people have produced all of the evidence that is available, that the prosecuting attorney [sic] that would be helpful in the decision of this case. It is unfortunate that people refer [sic, prefer] to make such references but sometimes they do, and the jury is now instructed to disregard completely the statement of counsel for the defense on this [sic] last two or three sentences.”
This instruction was not objected to by the defendant. Unlike the previous error, we find that no manifest injustice resulted to defendant by this instruction. Where no objection has been made to instructions, the alleged errors have not been saved for appellate review absent manifest injustice. People v McKeller, 30 Mich App 135 (1971). The exceptions to this consistent holding have involved failures to instruct or errors in instructing on basic and controlling issues. People v Charles Jackson, 21 Mich App 132, 133 (1970). While we have found that the previous instruction, which failed to mention a needed element of the crime was a basic and controlling issue, such is not the case with this instruction. Consequently, defendant’s failure to object to this instruction waived the alleged error on appeal.
Defendant finally contends that his constitutional right to remain silent was violated by the use of the word “surprisingly” in the trial court charge to the jury on defendant’s failure to take the stand and testify in his own defense. The original trial transcript indicated that the trial court charged:
“Under the law of this state a defendant may take the stand and testify on his own behalf or he may not. That is his choice. He has the right not to testify, the defendant in this case had a right to go upon the witness stand and testify in his own behalf if he chose to do so. The law, however, surprisingly provides that no presumption adverse to him is to arise from the mere fact that he does not place himself upon the witness stand, so in this case the mere fact that this defendant has not availed himself of the privilege which the law gives him should not be permitted to prejudice him in any way. It should not be considered as evidence either of his guilt or innocence. The failure of the defendant to testify is not even a circumstance against him and no presumption of guilt can be indulged in by the jury on account of such failure on his part.” (Emphasis supplied.)
Our examination of the record indicated that a mistake had occurred in transcribing the trial transcript. The court reporter’s notes clearly show that the word “expressly” was used in the charge rather than “surprisingly.” The charge was therefore in compliance with the charge suggested by 2 Gillespie, Michigan Criminal Law & Procedure, § 906, form no. 403, p 1282, Respondent’s Failure To Testify. Accordingly, the court reporter has provided this Court with four corrected pages in addition to filing an affidavit detailing the error. In view of the fact that no such error actually occurred in the trial, the issue as to this portion of the charge is moot.
Affirmed as to the conviction for carnal knowledge of a female over 16 years.
Reversed and remanded for a new trial as to the conviction for gross indecency between male and female persons.
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Danhof, J.
John Ricardo Mora was 39 years of age at the time of his death on September 17, 1965. He was employed full time as a dispatcher for the Consumers Power Company in Flint, Michigan, working at least 40 hours per week and sometimes in excess thereof. Approximately 2-1/2 years before his death, Mr. Mora commenced officiating at high school athletic events, principally football and basketball games. The deceased was registered with and certified as an official for high school athletic contests by the Michigan High School Athletic Association (MHSAA) and was listed as such in a directory published by the MHSAA. During the summer months, between May and August, the deceased did not officiate at high school athletic contests, but did officiate at softball games in the City of Flint in their summer sports program. During the football season Mr. Mora officiated at high school football games on Friday nights and sometimes on Tuesday nights.
Some time prior to September 17,1965, a football game had been scheduled between Fowlerville High School and Haslett High School to be played at the Fowlerville High School field on the evening of September 17, 1965. As a matter of practice, the home team (Fowlerville High) provides the officials for the football game. The principal of Fowlerville High School contacted the secretary of the Flint Officials Association requesting the names of registered or certified officials available to officiate this particular game. A letter from the secretary furnished the names of three officials, including that of the deceased, to the Fowlerville High School principal. None of the officials named had ever been contacted before to officiate a game at Fowlerville. The principal sent letters to each of the three men asking them if they would officiate the particular game and enclosed therewith a completed form contract in duplicate signed by the principal on behalf of Fowlerville High School. Each contract provided for compensation of $15 for officiating the game, which was the amount generally paid for services by most high schools to those officiating at high school games. No other compensation or expenses were paid. The amount of compensation paid the officials remained the same without regard to the length of the time of the game, and without regard to the amount of time necessary for the officials to travel from their home to the place where the game was played and back. The principal received a signed contract from each of the officials including Mr. Mora. The contract signed by the deceased is furnished to the Michigan high schools by the Michigan High School Athletic Association.
Mr. Mora left his home in Fenton, Michigan, and met with the other officials at a pre-arranged place on the outskirts of Flint at about 5 or 5:30 p.m., from which point they rode to Fowlerville together. The deceased and the other officials arrived at Fowlerville at about 6:45 p.m., and changed into their official uniforms at the high school. The game started at 7:30 p.m., and was completed at approximately 10:30 p.m. By pre-arrangement Mr. Mora acted as the head linesman of the game. The game had progressed to within four to five minutes of the end of the first half when Mr. Mora ran up the field to retrieve the football, handed the football to another official, and collapsed. A doctor was on the field within half a minute and tried various methods of resuscitation, but without success.
The hearing referee determined that the deceased was an employee of the Fowlerville Public School System and not an independent contractor. The referee then made a determination that it would involve about six hours for the deceased to travel from his home in Fenton to Fowlerville, perform the duties, and return home for which he was paid $15. Therefore, the referee computed the hourly rate of pay to be $2.50 per hour which he multiplied by 40 to make a determination of an average weekly wage of $100. The hearing referee then ordered the Fowlerville School System to pay weekly benefits in the amount of $66.67 to the widow and children.
The Workmen’s Compensation Appeal Board unanimously affirmed the decision of the referee that the deceased was an employee of the defendant, but could not agree on the issue of weekly wage. Since a majority of four votes on the appeal board could not be received either way, the referee’s decision on weekly wage was affirmed.
This Court granted leave to appeal on the issue of computing the deceased’s weekly wage and that is the only question before the Court at this time.
MOLA 412.11; MSA 17.161 provided as follows:
“The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.
“The term ‘average weekly wage’, as used in this act, is defined to be the weekly wage earned by the employee at the time of his injury but in no case less than 40 times his hourly rate of wage or earning. When it is found that the established normal work week for the employee’s classification of employment in the establishment of the employer where the employee suffered a personal injury is less than 40 hours, then the average ‘weekly wage’ shall be established by multiplying the employee’s hourly rate or earning by the number of hours customarily worked in the employee’s classification of employment in that place of employment or his actual earned wages, whichever is greater.
“When the department finds that the employee was employed specifically and not temporarily on a part-time basis, the average weekly wage shall be determined by multiplying the hourly rate or earning by the average number of hours worked in the part-time employment. When it is found that the employee has worked an average of 25 hours or more per week in all of his current employments, he shall not be considered a part-time employee.
“If the hourly earning of the employee cannot be ascertained, or if no pay has been designated for the work required, the wage, for the purpose of calculating compensation, shall be taken to be the usual wage for similar services where such services are rendered by paid employees.
“In cases where there are special circumstances under which the weekly wage cannot justly be determined by applying the above provisions, an average weekly wage may be computed by dividing the aggregate earnings during the year prior to the injury by the number of days when work was performed and multiplying such daily wage by the number of working days customary in the employment, but not less than 5.”
In 2 Larson, Workmen’s Compensation Law, § 60.11, pp 88.176-88.179, we find the following:
“The commonest type of wage basis statute is in three parts: The first paragraph usually says that, if the claimant has worked in the kind of employment in which he was injured for substantially the whole of the preceding year, his average annual earnings shall consist of, say, 300 times the average daily wage as a six-day worker, and 260 times the average daily wage as a five-day worker, which he shall have earned while so employed; the second paragraph typically says that, if he did not work in such employment during substantially the whole of the year, the same formula shall be applied to the wage of an employee of the same class working substantially the whole of the year in the same or similar employment in the same or a neighboring place on the days when so employed; and the third paragraph contains some general formula to be used if either of the foregoing methods cannot fairly be applied, such as the following: such sum as, having regard to the previous earnings of the injured employee in the employment in which he was working at the time of the injury, and of other employees of the same class, etc., or in other employment or self-employment of such employee, shall reasonably represent the annual earning capacity of the injured employee. The average weekly wage is then set at one-fifty-second part of the average annual earnings so computed.
“Many of the litigated cases in this area begin with the question whether the first two tests can fairly be applied or whether resort to the third is appropriate. Typically, this necessity exists when the employment itself, or claimant’s relation to it, is inherently intermittent, discontinuous, or part-time, for in such a case the multiplication of average daily wage by 300 would not accurately reflect annual earning capacity in that employment.”
The unique facts of this case indicate that the weekly wage cannot be justly computed on the basis of an hourly wage. The utilization of an hourly wage in this case would unjustly favor an official who lives close to the place where the game is to be played and would unnecessarily penalize an official who travels some distance. Further, the prohibition of the statute which states, “When it is found that the employee has worked on an average of 25 hours or more per week in all of his current employments, he shall not be considered a part-time employee”, prohibits us from considering the deceased a part-time employee.
We believe the instant case is one which clearly requires the application of the last paragraph of the above cited statute which provides: “In cases where there are special circumstances under which the weekly wage cannot justly be determined by applying the above provisions, an average weekly wage may be computed by dividing the aggregate earnings during the year prior to the injury by the number of days when work was performed and multiplying such daily wage by the number of working days customary in the employment, but not less than 5.” Thus, under the facts presented in this case, it is this provision that should have been used for the computation of the weekly wage. Utilizing this provision, we find the weekly wage should have been computed at $75 per week and the authorized award should be $50 per week.
As modified above, the decision is affirmed.
All concurred. | [
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] |
O’Hara, J.
This is a case of statutory construction. In general terms it is a controversy in what has come to he known as “obscenity” or “pornography” cases. It is a troubled area of law, and to a large extent the whole field has been preempted by the United States Supreme Court.
We do not believe that the precise point we decide here is controlled by Federal Supreme Court precedent or precedent of the Michigan Supreme Court.
The involved statute, MCLA 600.2938; MSA 27 A-.2938, authorizes the prosecuting attorney to institute actions in circuit court to “enjoin and prevent the sale or further sale or the distribution of further distribution or the acquisition or possession” of certain so-called obscene materials. (Emphasis supplied.)
The crux of the attack made by defendant below was that MCLA 600.2938, supra, provides for seizure and destruction of obscene materials privately possessed and thus contravenes Stanley v Georgia, 394 US 557; 89 S Ct 1243; 22 L Ed 2d 542 (1969).
We do not agree. The touchstone of Stanley was “the right to read or observe what he pleases — the right to satisfy his intellectal and emotional needs in the privacy of his home.” United States v Reidel, 402 US 351, 355; 91 S Ct 1410, 1412; 28 L Ed 2d 813, 817 (1971). Thus, the Stanley doctrine does not extend to commercial enterprises exhibiting or selling allegedly obscene materials for profit.
To come within the proscription of MCLA 600-.2938, as originally enacted, the possession or acquisition spoken of had to be with the intent to sell or distribute. See 1958 PA 126; 1948 CL 692.841-692.850; MSA 27.1410 (1)-27.14M(10). It would not appear that deletion of the “intent” language was intended to change the substance of 1958 PA 126, but merely to reorganize and reword it. This is borne out by the committee comment of MCLA 600.2938.
The legislative history of MCLA 600.2938 indicates a clear intent that the statute be applicable only to possession or acquisition with the intent to sell or distribute. Since, as noted hereinbefore, private possession of obscene materials is protected only when it is for private use rather than for sale or commercial distribution, MCLA 600.2938, supra, does not infringe upon the constitutional right to private possession of such materials as set forth in Stanley, supra, and as explained in Reidel, supra.
For these reasons we hold that the learned trial judge erred in dismissing plaintiff appellant’s action on the ground of the unconstitutionality of the statute for overbreadth. MCLA 600.2938, supra, as we read it, does not proscribe personal acquisition or possession. Impliedly, as well as by its own terms, it is confined to acquisition and possession for sale or distribution.
We, of course, intimate no opinion as to the merits of this case.
Reversed and remanded for proceedings not inconsistent herewith.
All concurred. | [
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Per Curiam.
This is an appeal from a Lapeer County Circuit Court order and judgment holding the Deerfield Township zoning ordinance invalid insofar as it excludes the location or operation of licensed trailer-coach parks in Deerfield Township. Plaintiff desired to build such a park in the township. This application for a building permit was denied by the zoning administrator on the ground that trailer-coach parks were not permitted in the agricultural-residential zone in which the proposed park was located. The Zoning Board of Appeals for Deerfield Township affirmed this decision. The circuit court reversed. The township appeals.
The original draft of the Deerfield Township zoning ordinance made trailer-coach parks a conditional use and required the Zoning Board of Appeals to issue a special permit at its discretion. The adopted ordinance deleted the reference to trailer parks as conditional uses. The zoning board chairman testified that the deletion was a copying error.
Despite this, the defendant contends that trailer parks are commercial uses and plaintiff should have requested a rezoning of his parcel to commercial This argument must fail. First, if trailer parks are commercial uses, requiring plaintiff to petition for rezoning of his property governed by the whim of the Zoning Board of Appeals is spot zoning. Spot zoning is impermissible in Michigan. Trenton Development Company v. Village of Trenton (1956), 345 Mich 353. Second, we do not believe trailer parks are commercial uses. While owning and operating a trailer park may be a business, living in one is not. We can perceive no difference between living in a trailer park and living in an apartment building. Merely because someone will profit by a certain use of an area does not make that use commercial. See Barthe, Mobile Homes: Zoning and Taxation, 55 Cornell L Rev 491, 498, 499. The statement of the board chairman and the fact that the adopted ordinance makes no provision for trailer parks support plaintiff’s contention that trailer parks are considered conditional uses. No guidelines are provided for the grant or denial of such uses by the ordinance. Such grants of power to zoning boards are impermissible. Lyon Sand & Gravel Company v. Township of Oakland (1971), 33 Mich App 614.
In either event the ordinance must fail as it attempts to preclude trailer court development save for special permission to be granted by the mere whim of the Zoning Board of Appeals.
Affirmed. | [
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V. J. Brennan, J.
Defendant was convicted by a jury of two counts of firs't-deg'ree murder (MCLA 750.316; MSA 28.548). Prior to his trial, defendant’s attorneys moved to have him committed in order that his competency to stand trial be determined as provided by GCR 1963, 786.3. The court originally ordered such a commitment, but subsequently amended its order to provide that defendant be examined by a local clinical psychologist, the purpose being to determine whether commitment to a diagnostic facility was necessary to determine defendant’s competency.
We feel the judge’s actions in this regard were erroneous and reversible. The court rule (GCR 1963, 786.3) is mandatory. Whenever there is any question as to a defendant’s competency to stand trial, and that question is raised upon defendant’s motion, the court “shall” order the defendant com mitted to a diagnostic facility. People v Ledbetter, 31 Mich App 160 (1971).
Reversed and remanded for commitment to a diagnostic institution and for a new trial.
All concurred. | [
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McGregor, P. J.
This is a case attacking the validity of a zoning ordinance. The trial court, sitting without a jury, heard the case and issued a comprehensive finding of facts in his opinion, which the record sustains, and which we quote:
“Plaintiff Billy M. Van Arsdel, a property owner and real estate broker, purchased 154 acres of land in Section 19 of Addison Township, defendant, on July 28, 1966. At that time and until the present the permitted use under the township zoning ordinance is “agricultural”. In such areas only one-family dwellings on not less than ten-acre parcels are allowed.
“In the fall of 1966 the plaintiff became the supervisor of the township and continued in that office through 1967. During the summer of 1967 the plaintiff decided that his property could be profitably used for industrial purposes. He believed that he could successfully finance and develop a light industrial plaza. To that end he petitioned the Township Zoning Board for a rezoning of his property to an “industrial” district. The board approved the change and forwarded their recommendation to the County Coordinating Committee whose membership included the plaintiff. That committee also approved the change (the plaintiff not voting) and returned the matter to the Addison Township Board for final disposition.
“On November 20, 1967, in a tumultuous meeting attended by more than 100 citizens, the township board denied plaintiff’s petition for re-zoning. Shortly thereafter the plaintiff resigned as township supervisor and this suit was commenced on January 22, 1968. In his complaint the plaintiff says that the provisions of the zoning ordinance as applied to his land have no real relation to the public health, welfare, and safety and have taken from him the useful value pf his land. It is his position that the taking is arbitrary, capricious, and confiscatory and hence unconstitutional.
“The defendant township takes issue with plaintiff’s stated position. It insists that the ordinance provides a reasonable regulation of land use in the township consistent with the needs of the community and should be sustained. The intervening defendant, Dr. Robert C. Small, is a landowner whose property borders plaintiff’s land on the north. He is presently chairman of the Township Planning Commission, successor by ordinance amendment to the zoning board of 1967. He opposes a change in zoning in an area that in his opinion is best suited to agricultural and residential uses.
“Plaintiff’s land is open and basically unimproved. The only actively used building is an old and poorly maintained farmhouse occupied by renters. The farm outbuildings are in various stages of disrepair. No public utilities except electric power and tele phone are available. A view of the property by the court and testimony offered at the trial disclosed that there has been no active farming of the land for some years.
“The acreage borders Lakeville Road on the south. That road is hard surfaced carrying a medium amount of traffic and is used by trucks carrying gravel from mining operations in nearby Oxford Township. On the east the land borders on Hosner Road, best described as a gravel surfaced country road. A railroad right-of-way parallels Lakeville Road and splits the land. About one-third of the acreage lies between the railroad and the road.
“During the trial the railroad track was mentioned a number of times. It does exist and it does divide the plaintiff’s land but its overall influence on the area environment was over-emphasized. It is used only on rare occasions by gravel-carrying trains. Except as it would be convenient to industrial activity, it neither adds to nor detracts from the natural beauty of the whole area.
“As to the natural environment of the area, including and surrounding the plaintiff’s property, this court observed an open and rolling terrain interspersed with woodland, quiet in contrast with commercial and industrial activities in Oxford Township. New and attractive homes have been built or are in the course of construction close by the plaintiff’s land. The auction house on Lakeville Road is no longer active. The dump where used cars were dismantled and portions burned is no longer operative. The heavy equipment stored across the road from plaintiff’s land is being used to create a pond and the one area where industry is permitted by ordinance is not presently used for that purpose. All in all, one gets the impression of a quiet restful countryside occupied by people who work in other communities and come home to the comfort of homes set in attractive wooded sites.
“Plaintiff would change that environment. He purchased his land four years ago for $280 per acre but will not sell for $1,000 per acre today. He believes, and probably with reason, that if a change in zoning is had his land would then be worth some $3,000 per acre on the market.
“One of plaintiff’s witnesses testified that despite the great growth in population and industrial activity in the metropolitan area of Detroit the immediate area around plaintiff’s property has changed very little in the past ten years. Those who have recently come into the community have built their homes on parcels of ten acres or more. Any commercial or industrial use that did exist has in large part become inactive. The fact that the one area in the township zoned for industrial purposes, less than a mile from plaintiff’s property, is no longer used for that purpose indicates to this court that there is neither demand or need for industrial use in the community.
“Plaintiff’s witness, Mr. Herbert Herzberg, an exceptionally well qualified appraiser and planner, testified that industrial use of plaintiff’s land would lessen the value of adjacent home areas and would cause increased noise. On the other hand, he conceded that such permitted use would increase the value of plaintiff’s property. Further he said that in his opinion industrial development would not occur in the community for at least five or six years. Other credible witnesses were of the opinion that public water service and a sanitary disposal system will not be available for roughly 20 years.
“The water level table on the plaintiff’s land is admittedly high and there are no public drains. Although a lagoon system of sewage disposal has proved adequate in one mobile home area in the township, there exists the possibility that industrial use of the plaintiff’s land might cause pollution on adjoining properties. No present use in the community offers a like possibility.
“In the event of industrial use, traffic would be increased on the adjacent secondary roads over existing conditions. The use of the now relatively inactive railroad would likewise be increased. The inevitable result would be less desirable homesites for the long time residents and for those who have recently built in the rural environment.
“When the zoning ordinance was originally enacted the drafters recognized the then existing use. They are presumed to have believed that such use was a reasonable and desirable one. The wisdom of their decision is proved by the continuing and developing use of the area for suburban homesites. Clearly there has been a direct and successful relationship between the imposed zoning and the welfare of the community. The public health and safety of the community have been maintained.
“To now change that stable situation by creating the danger of polluted lands, increased traffic on presently comfortable highways, diminished value of adjacent homesites and a radical change in the quiet peaceful environment would, in the opinion of this court, adversely affect the public health and welfare of the community.
“It is therefore the court’s opinion and finding that the present township zoning ordinance reflects an existing use desired by the people of the community and has a reasonable relationship to the health, welfare and safety of those persons. The ordinance is a valid exercise of the zoning powers of the township as prescribed by statute. A judgment may enter to that effect. Dated: August 11, 1970.”
Plaintiff presents several issues for this Court’s consideration. However, all of the issues hinge upon the basic issue of whether the trial court erred in its determination that the proposed zoning change would adversely affect the public health and welfare of the township, and whether the existing ordinance reflects the desires of the community and has a reasonable relation to the health, welfare, and safety of those persons. Inherent in this determination is whether the ordinance is unconstitutional as applied to the plaintiff’s property.
“The governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.” Nectow v Cambridge, 277 US 183, 188; 48 S Ct 447, 448 ; 72 L Ed 842, 844 (1928).
There are numerous well-settled propositions of the law that should be set forth. Professor Michael H. Feiler, in his article, Metropolitanisation And Land Use Parochialism — Toward a Judicial Attitude, 69 Mich L Rev 655, 677 (1971), states pertinently :
“A private property owner should be able to advance in court the inquiry whether his property rights are being interfered with for a legitimate purpose — one reasonably related to the promotion of the public health, safety, welfare, or morals. This proposition is stated simply:
“ ‘ * # * governmental power to interfere with general rights of landowners by zoning regulations restricting the character of use of property is limited to restrictions which bear some substantial relation to the public health, safety, morals, and general welfare * * # Under the guise of the police power legislatures may not impose unnecessary and unreasonable restrictions on the use of private property in pursuit of useful activities. E. Bassett, Zoning 77 (1936), citing Seattle Trust Co v Roberge, 278 US 116, 121; 49 S Ct 50, 51; 73 L Ed 210, 213 (1928).’ ”
Plaintiff should be able to establish the prima facie unreasonableness of the ordinance by reference to the applicable constitutional policies and at least enjoy immunity from zoning restrictions to the extent that the township cannot show a countervailing necessity that outweighs the impingement on the state policy. A zoning ordinance is clothed with a presumption of validity and it is the burden of the attacking party to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property. Brae Burn, Inc v Bloomfield Hills, 350 Mich 425 (1957). While the role of the courts is greater than merely to bow to the local planning judgment, the efficacy of the judicial process requires the courts to ascertain those instances in which private rights have been reduced without commensurate public benefit. The burden is upon the attacking party to establish that the ordinance has no reasonable, substantial relationship to health, safety, morals, or general welfare. Rottman v Waterford Twp, 13 Mich App 271 (1968); Dusdal v City of Warren, 23 Mich App 583 (1970); Parkdale Homes, Inc v Clinton Twp, 23 Mich App 682 (1970).
The test is whether the zoning ordinance is unreasonable as it now stands, not whether there might be some better or more profitable use of the land. While this Court tries an equity case de novo, great weight is given the findings of fact made by the trial court. Biske v City of Troy, 381 Mich 611 (1969); House v Bloomfield Hills, 18 Mich App 184 (1969).
After a most thorough review of the record, this Court has determined that the trial court did not commit reversible error in its holding.
The record fully supports the trial court’s finding that the ordinance in question bears a reasonable and substantial relationship to the health, welfare, and safety of the township. The plaintiff failed in his burden to prove the ordinance is unreasonable and failed to prove that the ordinance does not bear a reasonable, substantial relationship to the health, welfare, safety, or morals of the township. The most plaintiff did prove was that he is not able to derive maximum profit from his property because of the restrictions of the ordinance, but, as said, the test of the constitutionality of a zoning ordinance is not one of profitability.
Finding no reversible error, we affirm. Costs to defendants and intervening defendants.
All concurred. | [
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Van Valkenburg, J.
The defendant, originally charged with second-degree murder, was found guilty by the trial judge sitting without a jury of manslaughter, MCLA 750.321; MSA 28.553, and was sentenced to a prison term of from 5 to 15 years. He appealed as of right and is free on bond pending the outcome of this appeal.
The story begins on the evening prior to the date of the death which gave rise to defendant’s convic tion. On that evening defendant was in the bar owned by the deceased, one Herman Frye. At that time defendant had difficulty remaining awake and was escorted to the door by one of the barmaids; whereupon defendant is reputed to have made certain threats to Mr. Frye that he was going to kill him.
Early the next evening Mr. Brown, while being simultaneously engaged in a game of pool and the drinking of beer at Mr. Frye’s bar, was accused of cheating by his playing partner. When defendant threw the cue stick down on the table, Mr. Frye entered the picture. Frye told defendant not to wreck his place, placed the cue stick in the rack, turned out the light above the table, and returned to his position behind the bar.
Defendant followed Frye, uttering words of profanity and expressing the opinion that Frye was carrying a gun. Defendant, upon reaching Frye assaulted and struck him about the head. Frye managed to retreat into the kitchen, where he located a .38-caliber revolver in a cigar box on the top of the refrigerator. A struggle for possession of the gun began in earnest. Brown, a trained combatant, grabbed for Frye’s wrist, and during the struggle two shots were fired, one entering the ceiling and the other entering the body of Frye. While the employees and customers were evacuating the premises, a third shot was fired, which entered the wall. Eventually Brown succeeded in gaining possession of the weapon and started to walk out. Frye, although wounded, secured another gun from the kitchen and fired at the defendant as he was leaving.
The court after listening to the testimony made the following determination:
“Gentlemen, I find as a fact in this case that the defendant, Mr. Brown, indeed, was the aggressor. I find as a fact that the defendant, Mr. Brown, struck a blow to the deceased, Mr. Frye, prior to the time that Mr. Frye drew the gun. I further find that the fact in this case that the fatal shot occurred at a time when the defendant and the deceased were struggling over the gun and not at the time when the defendant had the pistol in his possession.
“I find the defendant guilty of manslaughter.”
The defendant takes the position that the shooting was an accident. Defendant specifically does not claim that the shooting occurred as a result of an act of self-defense. Further, he asserts that the finding of fact on the part of the trial judge was insufficient to support a conviction of manslaughter, in that there was no proof that the homicide resulted directly from the assault. For authority he relies heavily on People v Scott, 29 Mich App 549 (1971). That case can he distinguished from the present situation, in that there the defendant attempted to force a vehicle off the road, and later, an unmarked patrol car, while in pursuit of defendant, collided with a DSR bus killing one of the officers. Clearly, that was an intervening occurrence not connected with the original assault.
The Court in Scott, supra, at 558 said:
“In criminal prosecutions there must he a more direct causal connection between the criminal conduct of the defendant and the homicide charged than is required by the tort liability concept of proximate cause.”
There is no quarrel whatever with this conclusion. See also People v Starkey, 20 Mich App 492 (1969).
We find further elucidation of this rule in 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1667, p 2012:
“If, in doing an act which would have been a misdemeanor at common law, a person causes the death of another, he is guilty of manslaughter, and the same is true of offenses which are made misdemeanors by statute. As has been pointed out, however, the mere doing of an act prohibited by statute, which in itself is not inherently or naturally dangerous to human life, will not support a charge of manslaughter.”
We quote also from People v Barnes, 182 Mich 179, 194 (1914):
“There seems to be no conflict in the decisions where the respondent is violating some statute, and where his manner is negligent and careless; the courts in such cases uniformly hold that he is guilty of manslaughter, if the death of some other person is the result.”
Therefore, we can conclude that the defendant cannot he found guilty of manslaughter while committing an unlawful act if death ensued as the result of the negligent acts of a third party or from a cause which is not directly connected with said unlawful act; hut that the defendant can be found guilty of manslaughter when the act was inherently or naturally dangerous, or the illegal activity was carried on in a negligent and careless manner. Barnes, supra; People v Harris, 214 Mich 145 (1921); People v Ogg, 26 Mich App 372 (1970).
As noted above, the trial court found that defendant was the aggressor and the fatal shot occurred while defendant and the deceased were struggling over the gun. Common knowledge dictates that a loaded revolver in the hands of two fighting combatants becomes a dangerous instrumentality which is capable and likely to bring about disastrous consequences. In accordance with the power granted this Court by G-CR 1963, 820.1(6) to draw inferences of fact, we find that the manner in which defendant carried on the fight was not only negligent and careless in nature, hut also, under such circumstances, was “inherently and naturally dangerous to human life”.
Since death resulted from a shot fired during the continuing illegal assault upon the deceased, while defendant was engaging in an act which was inherently and naturally dangerous to human life, the trial court properly found defendant guilty of manslaughter.
Affirmed and remanded to Detroit Recorder’s Court for execution of the sentence.
All concurred. | [
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R. B. Burns, J.
On December 2, 1966, defendant Veurink executed a standard form real estate listing agreement designating Sun Agency as exclusive broker for tbe sale of “Lot 2, Blk 1, Continental Addition, City of Muskegon”. The broker was to earn a commission of 10% of the purchase price if it procured “a Purchaser ready, willing, and able to purchase said property upon the terms and conditions set forth, or upon such other terms and conditions as the Owner shall accept in writing # * * ”. The “terms and conditions” were essentially “cash to seller”. On the second carbon of the agreement Mr. Greenwald wrote the following notation in the margin: “This listing can be cancelled at any time by Owner”.
The owners of Lots 3, 4, and 5, Block 1, Continental Addition, City of Muskegon, also signed listing agreements designating Sun Agency as exclusive broker for the sale of said lots. Except for the purchase prices, these listing agreements were identical to the one executed by defendant Veurink.
On December 24, 1966, plaintiff presented defendant Veurink an unsigned form contract granting to the Shell Oil Company an option to purchase lot 2. The proposed option was to remain in effect through April 21, 1967. It obligated Shell Oil Company to accept title to the land and pay the purchase price if, within 120 days of the exercise date, three condi tions were satisfied: (1) the seller’s title was acceptable to the buyer’s attorneys; (2) the construction and operation of a gasoline service station was permitted by applicable laws and ordinances; and (3) the buyer had been able to purchase lots 3, 4, and 5 from their respective owners. Defendant Yeurink refused to sign the option.
The owners of the other lots signed options identical to the one tendered to defendant Veurink.
On January 12, 1967, defendant Yeurink again refused to execute the option to Shell, told plaintiff he wanted the Mobile Oil Company to have the assembled parcel, and solicited plaintiff to sell several lots across the street from the Continental Addition as a condition to the sale of lot 2.
Plaintiff initiated this action to recover a broker’s commission allegedly owing him pursuant to the December 2,1966 agreement. The judge denied the requested relief on two grounds: (1) a holder of an option is not! a “ready, willing, and able” purchaser; and (2) pursuant to the terms of the agreement, defendant Yeurink had cancelled the listing agreement.
We concur with the trial judge.
An option is “a preliminary contract for the privilege of purchase, not a contract of purchase.” Axe v Tolbert, 179 Mich 556, 562 (1914). See also Comment, The Real Estate Listing Contract in Michigan: An Attempt at Contract Certainty, 47 Journal of Urban Law 523, 553 (1969). Therefore, unless the custom of the real estate trade can be said to have varied the otherwise plain terms of the December 2,1966 listing agreement, the Shell Oil Company was not, as of December 24, 1966, a “Purchaser ready, willing, and able to purchase * * * upon the terms and conditions set forth * * * Since the Shell Oil Company never offered to take an option on the other lots added to the agreement on January 12, 1967, Shell was never a “Purchaser ready, willing, and able to purchase * * * upon such other terms and conditions as the Owner shall accept in writing * * * ”. Consequently, plaintiff did not earn his commission. Barber v Vernon, 8 Mich App 116 (1967); Calka v Donahoe, 20 Mich App 120 (1969); and Westdale Co v Gietzen, 29 Mich App 564 (1971).
Plaintiff offered no evidence below to support his claim on appeal that, within the custom of the trade, Shell’s proffering an option made it a ready, willing, and able purchaser within the mutually understood meaning of the listing agreement.
Because we have decided that defendant Veurink was within his rights in refusing to execute an option to Shell, we need not consider the allegation that defendant Bytwerk “wilfully and maliciously” induced defendant Yeurink to violate the terms of his agreement with plaintiff.
Affirmed.
All concurred. | [
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V. J. Brennan, J.
This is a suit for damages stemming from a car-truck accident which occurred on Route 280 south of Toledo, Ohio, on July 29, 1964. Plaintiff Felix Walls, a resident of Detroit, was proceeding south on Route 280 when the accident occurred. The testimony regarding the accident was conflicting. At the point of the accident, Route 280 is a limited-access highway with two lanes in each direction separated by a median. The plaintiff maintained that the truck driver was traveling across the southbound portion of the highway at a 45-degree angle in an effort to turn across the median. The truck driver admitted that he intended to turn across the median, but testified that he was merely changing lanes at the time of the accident. The defendant also introduced evidence that the plaintiff was exceeding the posted speed limit at the time of the collision.
The case was tried in the Wayne county circuit court under the substantive law of Ohio. No issue is raised on appeal regarding the propriety of applying Ohio law. Plaintiffs appeal from a jury verdict and judgment for the defendant.
The first issue plaintiffs raise on appeal is that the verdict of the jury was against the great weight of the evidence. It is well settled that such an issue is raised only by a motion for a new trial, and this Court will only review a denial of such a motion for abuse of discretion. Plaintiffs did not move for a new trial, and therefore this argument is not properly before this Court. Termaat v. Bohn Aluminum & Brass Company (1961), 362 Mich 598; People v. Mattison (1970), 26 Mich App 453.
Second, plaintiffs allege two errors in the trial judge’s charge to the jury. The first such error is the trial judge’s refusal to give the following charge:
“Ohio Revised Code § 4511.35: Whenever any highway has been divided into two roadways by an intervening space, or by a physical barrier, or clearly indicated dividing section so contructed [sic] as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway, and no vehicle shall be driven over, across, or within any such dividing space, barrier, or section, except through an opening, crossover, or intersection established by public authority. This section does not prohibit the occupancy of such dividing space, barrier, or section for the purpose of an emergency stop or in compliance with an order of a police officer.
“I charge you ladies and gentlemen of the jury, that violation of § 4511.35 of the Ohio Revised Code, which I just read to you, is negligence per se. In other words, if you find from the testimony and evidence that the truck driver, Mr. Arthur B. Fielding attempted to make a turn from one side of a divided roadway to the other side, this would be negligence per se and you would have to find him negligent under the law.”
The plaintiffs are correct. After reviewing the testimony and the exhibits, we are convinced that the prohibition contained in § 4511.35 of the Ohio Revised Code, supra, applied to the point at which the truck driver admittedly intended to make a U-turn. Furthermore, as counsel argued both to this Court and to the court below, the Ohio Supreme Court has ruled that a violation of this statute does constitute negligence per se. Ornella v. Robertson (1968), 14 Ohio St 2d 144 (237 NE2d 140). There was more than enough testimony in the record to support a conclusion by the jury that the truck driver was in the process of making such an illegal turn at the time the accident occurred. A refusal to give the charge as requested is therefore reversible error.
The second exception to the charge relates to the instructions regarding speeding under the law of Ohio. The plaintiff requested the following charge:
“I charge you, ladies and gentlemen of the jury, that violation of the basic speed law in Ohio is not negligence per se. That is to say that even if you find, as a matter of fact, that the driver of the Cadillac, Mr. Felix Walls, was driving in excess of the posted speed limit at the time of this accident, you will have to weigh and consider all of the sur rounding facts and circumstances existing at that time before deciding whether such speeding amounted to negligence, it would not be negligence per se.”
The charge as given is as follows:
“I charge you, ladies and gentlemen of the jury that it is for you to determine if there was a violation of the basic speed law in Ohio. That is to say that, if you find, as a matter of fact, that the driver of the Cadillac, Mr. Felix Walls, was driving in excess of the posted speed limit at the time of this accident, you will have to weigh and consider all of the surrounding facts and circumstances existing at that time before deciding whether such speeding amounted to negligence.”
There is very little difference between the charge as requested, and the charge as given. We feel, however, that neither the request nor the actual charge accurately reflect the law of Ohio on this point. There is no fixed speed limit in Ohio, only prima facie lawful or unlawful speeds. Robinson v. Ferguson (1957), 105 Ohio App 311 (149 NE2d 152); Lehman v. Westhoven (1967), 10 Ohio App 2d 66 (226 NE2d 795). Driving at a speed 10 miles per hour in excess of the posted speed limit on a limited-access highway under perfect driving conditions is not a violation of the basic-speed law in Ohio. State v. Bratten (1967), 14 Ohio App 2d 93 (236 NE2d 683). The basic test used by the Ohio courts to determine whether or not the basic-speed law has been violated is whether or not the driver could have stopped within the “assured clear distance ahead”. State v. Bratten, supra; State v. Wall (1962), 115 Ohio App 323 (185 NE2d 115). Furthermore, a driver in Ohio has a right to assume that other drivers will obey the traffic laws. Lehman v. Westhoven, supra. An inability to stop due to another driver suddenly pulling into the roadway and thus reducing the “assured clear distance ahead” is not in violation of the statutes. Tenhunfeld v. Parkway Taxi Cab Company (1957), 105 Ohio App 425 (152 NE2d 770).
It is therefore apparent that the question of whether or not plaintiff was speeding, and whether or not plaintiff was negligent must be answered by the jury in the same manner. “It is conceded that plaintiff was driving at a prima facie unlawful speed, but whether he violated the statute and was guilty of negligence was a question of fact for the jury, in the light of all attendant circumstances.” Tenhunfeld v. Parkway Taxi Cab Company, supra, p 429. (Emphasis added.)
Therefore, both the requested charge, and the charge as given, did not accurately reflect the law of Ohio in that each set forth the question of speeding and the question of negligence as separate issues. If the plaintiff could not have stopped in the “assured clear distance ahead”, he was both speeding and negligent. If he could have stopped, he was neither. If he could have stopped but for the truck driver suddenly and unexpectedly reducing the “assured clear distance ahead”, he was neither speeding nor negligent.
The third issue plaintiffs raise on appeal is that two questions asked by the jury during their deliberations indicate that they were confused regarding the law of Ohio. In view of our disposition of plaintiffs’ second argument, it is unnecessary for us to reach this question.
Reversed and remanded.
All concurred. | [
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O’Hara, J.
This is an appeal from a jury conviction of the offense of unarmed robbery, MCLA §759.530 (Stat Ann 1954 Rev § 28.798). The appeal was taken of right.
As his sole assignment of error, defendant takes exception to the charge that:
“The defendant in this case had a right to go up on the stand and testify in his own behalf if he chose to do so. The law, however, expressly provides that no presumption adverse to him is to arise from, that if he does not place himself upon the witness stand. So, in this case the mere fact that Turner Henry has not availed himself of the privilege that the law gives him should not be permitted by you to prejudice him in any way. It should not be considered evidence either. The failure of the defendant to testify is not even a circumstance against him and no presumption of guilt can be indulged in by the jury on account of such failure on his part.” (Emphasis supplied.)
In particular, defendant claims that the negative phrasing of the charge would necessarily prejudice the jury against him. This, he argues, is proscribed by Griffin v. California (1965), 380 US 609 (85 S Ct 1229; 14 L Ed 2d, 106).
The learned trial judge’s use of the word “failure” to take the stand may he unfortunate, but when read in conjunction with the balance of the charge cannot be characterized as implicitly adverse.
Even though this instruction was judicially approved in People v. Provost (1906), 144 Mich 17, 18, and has found its way into the widely used and highly respected Gillespie, we think that a word denoting free choice, such as, but not limited to “election” or “choice” might better be substituted for “failure” in future instructions.
Theréwas no reversible error.
Affirmed.
All concurred.
2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 906, Form No 403, pp 1282, 1283. | [
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Per Curiam.
This action was commenced by reason of an accident that occurred between defendant driver and the seven-year-old plaintiff pedestrian. Plaintiff appeals from a jury verdict of no cause of action.
Plaintiff raises three issues for review, all dealing with jury instructions.
In determining whether error has been committed, we must consider the instructions as a whole to determine if they fully represent the law applicable to the case, Lake Oakland Heights Park Association v. Township of Waterford (1967), 6 Mich App 29; St. Louis v. Fisher & Company, Inc. (1965), 1 Mich App 55; Huffman v. First Baptist Church of Flushing (1959), 355 Mich 437.
The first issue raised is whether it was error for the trial judge to charge the jury in regard to automobiles entering intersections with the green light and having collisions with automobiles entering the intersections against the red light when in fact there was no issue as to lights in the case at trial. This instruction, when reviewed in context, reveals that the trial judge used the example merely to illustrate a point of law. The trial judge is given large discretion in regard to the style and general manner of the charge in a case. Mawich v. Elsey (1881), 47 Mich 10.
It is not error for a trial judge to use an example when he is instructing the jury, unless the example serves to mislead the jury. Taylor v. Hannon-Colvin Post 180 of American Legion (1967), 6 Mich App 398. When read in context, the objected-to instruction did not mislead the jury, but in fact helped to clarify the point of law the trial judge was conveying to the jury.
The second issue raised was whether it was error for the trial judge to charge the jury as to violation of an ordinance where the ordinance was pleaded in the complaint hut the attorney in his requested instructions sought the instruction based on the statute only. Again, the trial judge used this part of the instruction to illustrate a point of law, and the instruction taken as a whole is not so misleading or confusing that it could not be understood by the jury. Taylor v. Hannon-Colvin Post 180 of American Legion, supra.
It should also be noted that plaintiff has cited no authority in support of this proposition. This Court has held that “defendant may not leave it to this Court to ‘search for authority’ to sustain or reject its position.” Grove v. Story Oldsmobile, Inc. (1971), 31 Mich App 613, 618; People v. Rogers (1968), 10 Mich App 380.
The third issue raised is whether it was error for the trial judge to charge that as a matter of law, an ordinarily prudent seven-year-old child must look while crossing a street with a green light.
On February 10, 1966, Darrell Pratt had been given some money by an adult in his home to go buy some candy and pop at a store in the neighborhood. It was approximately 8 p.m. on a drizzly, rainy evening, when Darrell Pratt and his young friend, Joseph Carter, went out on Concord Street in the City of Detroit. Darrell Pratt testified that he and his friend, Joseph Carter, were racing each other down the street. He stated that he had beaten Joseph Carter to the corner and that he stopped for the light at Concord and Lafayette. He indicated that he waited for the light to change and then walked out onto the street. On cross-examination, Darrell Pratt was questioned as to a prior deposition taken 1-1/2 years after the accident. In that deposition he stated that he ran across the street. Upon refreshing Darrell Pratt’s recollection regard ing what he stated previously, the following appears in the record:
“Q. And was your statement true as you stated before that as you crossed the street you started to run, is that right? Is that the truth?
“A. Yes.”
Mr. Berry stated that he was driving his automobile in a southerly direction on Concord and made a left turn onto Lafayette. He said he was planning on making a stop within 150 feet or so from the intersection and had just pulled out from a parking spot about 155 feet away from where the accident occurred. Mr. Berry stated that as he made his left turn, he saw a young boy who was running so fast that he could not stop, and that the boy ran off the curb into his car. He stated that the boy hit the wheel or bumper of his car.
Darrell Pratt testified that he knew the area well and had crossed this street many times. He further stated that he observed the car as it left its parking place. At the time of the accident, plaintiff was seven years and nine months old.
The trial judge instructed the jury in part as follows:
“The plaintiff is represented by a next friend because he, himself, is of the age of 7-1/2 years. So that puts in a new twist, and this is the new twist. A minor is not held to the same standard of care as an adult. When I use the words ‘ordinary care’ with respect to the minor, I mean that degree of care which a reasonably careful minor of the age, mental capacity, and experience of the minor in this case would use under the circumstances which you find existed. It is for you to decide what a reasonably careful minor of 7-1/2 would or would not do under the circumstances that existed in this case. The law recognized that children act upon childish instincts and impulses.”
The trial judge also instructed the jury as follows:
“The existence of an ordinance allowing a child to cross the street on a green light does not absolve Darrell Pratt from looking while crossing the street, and I charge you that that is what an ordinarily prudent seven-year-old person must do when crossing the street.”
It is this last instruction to which the plaintiff complains. This issue is settled by Ackerman v. Advance Petroleum Transport, Inc. (1942), 304 Mich 96, in which an eight-year-old boy was killed by a truck because he failed to look before he crossed the street. The Supreme Court held the boy had the duty of making a proper observation before crossing. It was correct for the trial judge in the instant case to state that an ordinarily prudent seven-year-old child must look while crossing the street.
We find that the instructions, when considered as a whole, fairly and adequately stated the law applicable to the case.
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Taylor, P.J.
We granted defendants’ interlocutory appeal to resolve the appropriate method of appeal and standard of review where a zoning ordinance does not provide for an appeal to a zoning board of appeals from an unfavorable decision by a township board regarding a request for a special land-use permit. We hold that in such a case the decision of the township board is final and that the appropriate appellate forum is the circuit court, which must review the decision pursuant to Const 1963, art 6, § 28. Because the circuit court here did not conduct its review in this fashion, we reverse and remand.
i
Plaintiff is a recreational organization whose activities include archery, skeetshooting, trapshooting, and rifle, pistol, and black powder shooting. Plaintiff owns three contiguous parcels of land located in Exeter Township that total approximately 104 acres. Plaintiff proposed to build and operate a gun and sportsman club on its property. Under the controlling zoning ordinance affecting plaintiff’s land, gun clubs are allowed with a special land-use permit. On February 4, 1992, plaintiff submitted an application for a special land-use permit with the township board, which was subsequently denied. Thereafter, on April 21, 1992, plaintiff submitted a revised application, which was also denied. The township ordinance at issue did not contain a provision that allowed plaintiff to appeal the township board’s decision to a zoning board of appeals.
On June 9, 1992, plaintiff filed the instant case, alleging that the zoning ordinance was unconstitutional and that the township board’s decisions denying the special land-use applications were arbitrary and capricious and not supported by evidence on the record. On August 30, 1993, plaintiff submitted its third revised request for a special land-use permit, which was denied. Plaintiff amended its complaint to include the township board’s third denial.
On April 15, 1994, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that no genuine issue of material fact existed to refute the fact that the ordinance was valid and that the township board’s decisions denying plaintiff’s application were a proper exercise of its discretionary power. The trial court granted defendants’ motion with respect to the constitutionality of the ordinance, but denied the motion with respect to the application of the ordinance to plaintiff. In a written opinion, the trial court also found that the ordinance was arbitrary and capricious as applied to plaintiff. Defendants filed an interlocutory appeal, and we granted leave to resolve the appropriate method of appeal and standard of review.
ii
The confusion this case presents is attributable to the fact that Michigan’s Township Rural Zoning Act, MCL 125.271 et seq.; MSA 5.2963(1) et seq., is silent regarding the method of appeal and standard of review to be employed where a zoning ordinance does not provide for an aggrieved party to appeal to a zoning board of appeals an unfavorable decision of a township board regarding a request for a special land-use permit. Also, defendants filed a motion pursuant to MCR 2.116(C)(10); however, such a motion was inappropriate in this type of case, and the circuit court’s decision went beyond deciding this motion.
A
Pursuant to MCL 125.271; MSA 5.2963(1), “[t]he township board of an organized township in this state may provide by zoning ordinance for the regulation of land development.” Pursuant to MCL 125.290; MSA 5.296(20), a party challenging a particular ordinance may appeal an unfavorable decision of a township board to the township’s zoning board of appeals. Pursuant to MCL 125.293a; MSA 5.2963(23a), the decision of the zoning board of appeals is final; however, a person having an interest affected by the zoning ordinance may appeal the decision of the board of appeals to the circuit court. That section further provides:
(1) . . . Upon appeal the circuit court shall review the record and decision of the board of appeals to insure that the decision:
(a) Complies with the constitution and law of the state.
(b) Is based upon proper procedure.
(c) Is supported by competent, material, and substantial evidence on the record.
(d) Represents the reasonable exercise of discretion granted by law to the board of appeals.
(2) If the court finds the record of the board of appeals inadequate to make the review required by this section, or that there is additional evidence which is material and with good reason was not presented to the board of appeals, the court shall order further proceedings before the board of appeals on conditions which the court considers proper. The board of appeals may modify its findings and decision as a result of the new proceedings, or may affirm its original decision. The supplementary record and decision shall be filed with the court.
(3) As a result of the review required by this section, the court may affirm, reverse, or modify the decision of the board of appeals.
In the instant case, the procedure was somewhat changed in that plaintiff originally sought a special land-use permit from the township board, pursuant to MCL 125.286d; MSA 5.2963(16d). According to MCL 125.290; MSA 5.2963(20), an appeal of a township board’s decisions regarding special land-use and planned unit development decisions, “may be taken to the board of appeals only if provided for in the zoning ordinance.” Therefore, if an ordinance provides for an appeal from a township board’s decision on a special land-use permit to a zoning board of appeals, then pursuant to MCL 125.293a; MSA 5.2963(23a), the decision of the zoning board of appeal’s is final and may be appealed to the circuit court under the standard of review prescribed therein. However, MCL 125.290; MSA 5.2963(20) is silent regarding what recourse a party has when, as in this case, a township board denies a special land-use permit and the ordinance does not provide for an appeal to the zoning board of appeals. We resolve this issue of first impression by holding that where a township zoning ordinance does not provide for review of a request for a special land-use peraiit by a zoning board of appeals, the township board’s decision is final and subject to appellate review by the circuit court pursuant to Const 1963, art 6, § 28.
B
Art 6, § 28 provides as follows:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
The decision of the township board comes within the purview of this constitutional provision, and the trial court should have reviewed the township board’s decision under it. Cf. Lorland Civic Ass’n v DiMatteo, 10 Mich App 129, 135-136; 157 NW2d 1 (1968) (Detroit zoning board of appeals is a quasi-judicial body whose decisions affect private rights and art 6, § 28 establishes a right to judicial review and a minimum standard of review ). The circuit court is the proper court to review the township board’s denial because the circuit courts have appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law. Const 1963, art 6, § 13.
A hearing was required regarding plaintiff’s request for a special land-use permit, and, thus, the circuit court’s review should have been to determine if the township board’s decision was authorized by law and supported by competent, material, and substantial evidence on the whole record.
c
We now turn to the issue whether the circuit court properly considered defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10). We find that such a motion was improperly considered by the circuit court because the court was not sitting as a court of original jurisdiction, but rather as a court of appellate jurisdiction. Similarly, in Macenas v Village of Michiana, 433 Mich 380, 394-397; 446 NW2d 102 (1989), the plaintiff filed a claim of appeal in the Berrien Circuit Court from the decision of the board of appeals of the Village of Michiana denying his building permit. Id. at 383-385. The Macenas Court considered MCL 125.585(11); MSA 5.2935(11), which is the counterpart of MCL 125.293a; MSA 5.2963(23a) for cities and villages. The defendant village brought a motion for summary disposition pursuant to MCR 2.116(C)(8), claiming that the plaintiff had failed to state a claim upon which relief could be granted. Id. at 385. The circuit court granted the defendant’s motion, the plaintiff appealed to this Court, this Court reversed and entered summary disposition in favor of the plaintiff, and our Supreme Court granted leave to appeal. Id. at 385-386.
In rendering its decision, the Supreme Court noted that when the circuit court acts as an appellate court for purposes of considering and correcting assigned error within the ambit of review outlined in MCL 125.585(11); MSA 5.2935(11), the circuit court is instructed by statute to “ ‘review the record and decision of the board of appeals.’ ” Id. at 387. Therefore, the Court concluded that a motion for summary disposition pursuant to MCR 2.116(C)(8), which tests only the pleadings, was not appropriate, because if a proper appeal to the circuit court had been filed, a “cause of action” was stated, at least for purposes of obtaining appellate review of the board’s decision in accordance with the statute. Id. at 387-388.
Therefore, we conclude that, by analogy, defendants’ motion for summary disposition brought pursuant to MCR 2.116(C) (10) was not appropriate where the circuit court was sitting as an appellate court and considering plaintiffs claim within the ambit of Const 1963, art 6, § 28. In doing so, the circuit court was required to review the record and decision of the township board for competent, material, and substantial evidence in support of the decision and to determine if it was authorized by law. Therefore, the circuit court could not have properly entertained defendants’ motion for summary disposition.
Accordingly, by virtue of the appellate status of the circuit court, the standard of its review, and its statutory options for disposition of the claim, we find that the court’s consideration of whether a genuine issue of material fact remained for trial, done under the auspices of a MCR 2.116(C)(10) motion, was not proper. In addition, we also find that the circuit court erred in rendering its decision that the denial of plaintiff’s special land-use permit was arbitrary and capricious, because the court failed to employ the appropriate standard of review; i.e., pursuant to Const 1963, art 6, § 28.
m
In summary, we hold that where a zoning ordinance does not provide an aggrieved party the right to have an unfavorable decision of a township board regarding a request for a special land-use permit reviewed by a zoning board of appeals, appellate review is available to the aggrieved party in the circuit court, which must follow the review method prescribed in Const 1963, art 6, § 28. Because the circuit court did not conduct its review in this fashion, and because the circuit court erroneously considered defendants’ motion for summary disposition, we reverse and remand for disposition of the case under the appropriate standard of review.
Reversed and remanded. We do not retain jurisdiction.
As previously noted, the decisions of township zoning boards of appeal are subject to appeal and review pursuant to MCL 125.293a; MSA 5.2963(23a).
Const 1963, art 6, § 13, provides:
The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court. | [
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] |
The Court orders that a special panel shall be convened pursuant to Administrative Order No. 1996-4 to resolve the conflict between this case and People v Lino (After Remand), 213 Mich App 89, 98 (1995).
The Court further orders that the opinion in this case released June 4, 1996, is hereby vacated.
The appellant may file a supplemental brief within 28 days of the clerk’s certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant’s brief. Nine copies must be filed with the Clerk of the Court. | [
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Per Curiam.
Plaintiff appeals as of right that portion of the circuit court’s judgment of divorce that awards defendant a portion of his pension benefits that accrued during the parties’ first marriage (prior-acquired benefits). We affirm.
Plaintiff and defendant were first married on October 19, 1974, and divorced in Arkansas on September 28, 1984. Three children were bom to the parties during their first marriage: Gary, eighteen years of age at the time of trial, Michael, sixteen, and Tessa, thirteen. Gary resides with plaintiff while the two minor children reside with defendant. The parties remarried each other on April 4, 1987. They divorced on September 24, 1993. No additional children were bom to the parties during their second marriage.
The divorce judgment followed a one-day bench trial. Plaintiff testified that he was thirty-nine and an E-7 Master Sergeant aircraft mechanic on active duty in the United States Air Force since 1974. Defendant was thirty-seven at the time of trial. She was unemployed at the time of trial but had recently worked as a receptionist for $6 an hour for twenty hours a week. Defendant had a general equivalency diploma (GED) and a certificate for a year and a half of vocational school and business training. There were several allegations of fault against each party. Plaintiff was to begin receiving pension benefits on May 1, 1994, when he planned to retire. He believed the payments would amount to $926 a month.
The trial court added together the duration of both marriages and awarded defendant one-half of those benefits that plaintiff earned over the sixteen years the parties were married. (This amounts to forty percent of the pension, or $378.74 a month.) The court did not award any pension to defendant for the interim period during which the parties were not married. The court explained that it was awarding the pension in this way because there was mutual fault in the divorce, the pension appeared to be plaintiffs sole source of support, the law of pension division has been developing rapidly in recent years with courts becoming more willing to grant á share in a pension to a spouse following a longstanding marriage, the Arkansas judgment did make provision for a property settlement, and, as a matter of equity and fairness, the court should
award the pension as though the marriage were a sixteen year marriage, and not a six year marriage, and that is my view of the equities of the case. I could be wrong about it. I may be wrong as a matter of law, but if [I] am, Mr. McMichael, I think what you will have to do is talk with your lawyer about taking an appeal of that decision that I have made, and having it looked at by a higher court, but it is my view of the equities of the situation that we should consider this as a sixteen year marriage for purposes of awarding rights in the pension.
Plaintiff moved for a new trial. He argued that the trial court had improperly relied on non-Michigan authority, Anderson v Anderson, 13 Ohio App 3d 194; 468 NE2d 784 (1984), to combine the duration of the two marriages, that the award of prior-acquired benefits was precluded by the Arkansas divorce decree, and that the court should follow the Kilbride v Kilbride, 172 Mich App 421; 432 NW2d 324 (1988), line of cases that held that prior-acquired benefits cannot be treated as marital assets.
The trial court denied plaintiffs motion on the basis of the “equity of the situation.” The trial court observed that the parties had been married a considerable length of time and that there were very few assets of any kind to be distributed. Addressing the claim of collateral estoppel, the court noted that the Arkansas divorce decree did not mention the pension and there was no indication that the Arkansas divorce court gave any consideration to any future rights defendant might have in the pension.
Plaintiffs sole issue on appeal is whether the trial court erred in awarding defendant a fifty percent interest in the pension benefits earned during the first marriage (i.e., twenty-five percent of the total pension, or $236.71 a month). Plaintiff appeals only that portion of the award to defendant. He does not dispute the award to defendant of half of the pension benefits that he earned during the second marriage (i.e., fifteen percent of the total pension, or $142.03 a month).
Plaintiff first argues that because the 1984 divorce judgment actually and necessarily determined all of defendant’s rights in his pension with regard to the period of the first marriage, she is precluded from relitigating her share of plaintiff’s pension with regard to that period of marriage. We disagree. The applicability of collateral estoppel is a question of law to be reviewed de novo. Husted v Auto-Owners Ins Co, 213 Mich App 547, 555; 540 NW2d 743 (1995). Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding. Porter v Royal Oak, 214 Mich App 478, 485; 542 NW2d 905 (1995).
In this case, there is no evidence in the record that the issue of the pension was actually litigated or necessarily decided in the Arkansas divorce. The decree is silent with regard to the pension. Defendant testified that the reason the Arkansas decree was silent about the pension is that she was unaware that it existed then. Additionally, in his brief on appeal, plaintiff states that
at the time of that first divorce in 1984, the Plaintiff did not have a vested interest in a military pension, and had in fact only served 50% of the time that was necessary in order to vest his pension.
Thus, plaintiff himself in effect concedes that the pension was not considered in the Arkansas proceedings. Furthermore, plaintiff has failed to provide this Court with any Arkansas authority to support the contention that in 1984 the Arkansas divorce courts were compelled to rule regarding the allocation of unvested pension benefits. Having reviewed Arkansas law, we find that at the time the parties were divorced, the Arkansas court that presided over the parties’ 1984 divorce proceeding was not required to consider plaintiff’s unvested pension. See Durham v Durham, 289 Ark 3; 708 SW2d 618 (1986); Day v Day, 281 Ark 261; 663 SW2d 719 (1984). We therefore conclude that the trial court properly determined that collateral estoppel did not apply and defendant was not precluded from litigating the issue of prior-acquired benefits.
Plaintiff further argues that the trial court erred in relying on Anderson, supra, to “tack” the marriages together for property division purposes. However, the trial court in the instant case denied that it relied on Anderson. In fact, in granting defendant a portion of the prior-acquired benefits, it stated that it acted according to the “equities of the case.” Therefore, this issue is without merit and an analysis and application of Anderson is unnecessary to resolve this issue.
Plaintiff claims that the trial court erred in granting defendant the portion of his pension that accrued during the first marriage because prior-acquired pension benefits may not be divided as marital property. We disagree. In deciding the instant case, this Court must first review the trial court’s findings of facts under the clearly erroneous standard. Sparks v Sparks, 440 Mich 141, 150; 485 NW2d 893 (1992). If the findings are upheld, we must decide whether the dispositive ruling was fair and equitable in light of those facts. Id., pp 150-151. The ruling should be affirmed unless this Court is left with a definite and firm conviction that a mistake has been made. Id., p 151.
Plaintiff incorrectly contends that the court should have followed the Kilbride, supra, line of cases that held that prior-acquired benefits cannot be treated as marital assets. Previously, a conflict existed in this Court with regard to whether a pension accrued before a marriage may be divisible. The Kilbride line of cases on which plaintiff relies held that the portion of a pension that accrued before the marriage could not be considered part of the marital estate subject to distribution. Lesko v Lesko, 184 Mich App 395; 457 NW2d 695 (1990); Kurz v Kurz, 178 Mich App 284, 292; 443 NW2d 782 (1989). The Kilbride line of cases relied in large part on MCL 552.18(1); MSA 25.98(1), which provides:
Any rights in and to vested pension, annuity, or retirement benefits, or accumulated contributions in any pension, annuity, or retirement system, payable to or on behalf of a' party on account of service credit accrued by the party during marriage shall be considered part of the marital estate subject to award by the court under this chapter.
However, in Rogner v Rogner, 179 Mich App 326, 329; 445 NW2d 232 (1989), the defendant argued that the trial court erroneously divided his pension equally where one-third of the pension accrued before the marriage. In Rogner, this Court, while recognizing that property rights acquired before the marriage nor mally are not subject to division, determined that the trial court did not abuse its discretion by including pension benefits attributable to service before the marriage in its division of property, setting forth the following rationale:
The major consideration is the security of the family and the court may utilize any property in the real and personal estate of either party to achieve suitable support for the family as the court “considers just and reasonable after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.” MCL 552.23; MSA 25.103. [Rogner, pp 329-330.]
This Court resolved the conflict in Booth v Booth, 194 Mich App 284, 290-291; 486 NW2d 116 (1992), and followed Rogner, swpra, as the better-reasoned approach. The Booth Court held that “pension benefits accrued before marriage may be the subject of a division of property.” Id., p 291. The Booth Court further stated, id., quoting MCL 552.23(1); MSA 25.103(1) , that the trial court may include those pension benefits that accrued before the marriage if such treatment is “just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.”
More recently, in Boonstra v Boonstra, 209 Mich App 558, 562; 531 NW2d 777 (1995), in discussing whether the court’s jurisdiction was limited to contributions made “dining the marriage,” this Court stated:
This language [in MCL 552.18(1); MSA 25.98(1)] does not expressly restrict the circuit court’s jurisdiction to pension contributions made within the confines of the marriage. Although that statutory provision provides that pension contributions made during the marriage must be considered, it does not expressly provide that contributions made before or after the marriage may not be considered. That is, the language is inclusive and mandates what must be taken into account, but does not exclude consideration of other contributions.
The Boonstra Court held that “[p]ension benefits are assets to be considered part of the marital estate subject to distribution in the discretion of the circuit court.” Id., p 563. The Court also reiterated that one of the primary objectives of any divorce proceeding was “to arrive at a property settlement that is fair and equitable in light of all the circumstances.” Id. Further, “[i]n order to ensure that equity can be done, the trial court’s discretion must not be restricted unduly with regard to the distribution of assets, including premarriage and postdivorce pension contributions.” Id.
In the present case, the trial court discussed treating the two marriages as one. However, we find that treating the two marriages as one for purposes of the division of prior-acquired benefits was not necessary. Id.) Booth, supra. In any event, the trial court also found that the division of the prior-acquired pension benefits was equitable because there was mutual fault in the divorce, the pension appeared to be plaintiffs sole source of support, the parties were married for a considerable length of time, and there were very few assets of any kind to be distributed. We find that the trial court’s findings were not clearly erroneous. We also conclude that under the circumstances of this case, the trial court’s award of forty percent of plaintiff’s pension benefits accrued during the two marriages was fair and equitable.
Affirmed.
The Anderson court determined that it would enter an order to make payments under 10 USC 1408(d)(2) when the parties had been married a total of ten years, regardless of whether the ten years of marriage were consecutive.
MCL 552.23(1); MSA 25.103(1) provides:
Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage as are committed to the care and custody of either party, the court may further award to either party the part of the real and personal estate of either party and alimony out of the estate real and personal, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case. | [
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Doctoroff, C.J.
The trial court granted plaintiffs motion for summary disposition and ordered defendant to pay plaintiff $73,333 plus interest and costs. Defendant appeals as of right. We affirm.
The parties stipulated the facts presented in the trial court. While plaintiff was a passenger in an automobile driven by Gary Wenter, the automobile was hit by a wheel from a Ford Bronco that had crossed into the automobile’s driving lane. Gerald Amall, the owner of the Ford Bronco, had incorrectly replaced the wheel on the Bronco after fixing the brakes on his vehicle. The parties do not dispute that Amall’s negligence was the sole cause of the accident. Plaintiff’s recoverable damages amounted to $190,000.
The Bronco was insured by Olympian Insurance Company. That company became insolvent before it paid plaintiff for any damages from the accident. Amall also possessed liability coverage under an insurance policy from the Safeco Insurance Company. That policy contained limits of liability of $50,000 a person and $100,000 an occurrence. Plaintiff received $16,666.66 from Safeco as her portion of the payment under the $100,000 policy limit. Wenter’s vehicle was insured by the United States Automobile Association (usaa). Usaa paid plaintiff $100,000 under the uninsured motorist coverage provision of its policy.
Plaintiff was insured by defendant under a policy that provided uninsured/underinsured motorist coverage with a limit of liability of $100,000. The only issue in the trial court was the amount of money that plaintiff should have received from defendant after accounting for the payments to plaintiff by Safeco and USAA. Defendant filed a motion for summary disposition, claiming that plaintiff’s payment from USAA should be subtracted from the limit of liability of defendant’s policy. Because the payment from USAA was $100,000 and the liability limit of defendant’s policy was $100,000, defendant maintained that it owed no money to plaintiff. Plaintiff filed a cross-motion for summary disposition. In her motion, plaintiff argued that the payment from USAA should act as a setoff from plaintiff’s damages. Therefore, plaintiff maintained that the court should subtract the $100,000 payment from USAA and the $16,666 from plaintiff’s total damages of $190,000, and plaintiff should still be entitled to $73,333 from defendant.
If the language of an insurance contract is clear and unequivocal, the court will enforce its terms and not rewrite the contract. Any reasonable doubts or ambiguities will be construed most favorably to the insured, particularly where the insurance contract is drawn by the insurer. Parker v Nationwide Mutual Ins Co, 188 Mich App 354, 356; 470 NW2d 416 (1991).
The “limit of liability” clause in defendant’s policy for uninsured motorist benefits states, in relevant part:
Any amounts otherwise payable for damages under this coverage shall be reduced by all sums:
1. Paid because of the “bodily injury” by or on behalf of persons or organizations who may be legally responsible.
The “limit of liability” clause in defendant’s policy for underinsured motorist benefits contains similar lan guage. Defendant maintains that, pursuant to this clause, the $100,000 otherwise payable to plaintiff should be reduced by the sum paid by usaa on behalf of Wenter.
As authority for its position, defendant cites Mead v Aetna Casualty & Surety Co, 202 Mich App 553; 509 NW2d 789 (1993). In Mead, the underinsured motorist benefit clause contained the same language as the “limit of liability” clause for uninsured motorist benefits in this case. After the plaintiff received payments from the drunken driver who caused the accident and the bar who served liquor to the drunken driver, the defendant argued that those payments should be subtracted from its limits of liability. Because our Court found the language in the setoff provision to be unambiguous, we held that payments by or on behalf of a person who may be legally responsible for the accident should be subtracted from the defendant’s limit of liability. Id. at 554-555.
We find Mead distinguishable from this case because usaa’s payment to plaintiff was not a payment “by or on behalf of persons or organizations who may be legally responsible.” (Emphasis added). Usaa provided uninsured motorist benefits for Wenter. The parties stipulated that Amall was solely responsible for the accident. Therefore, the $16,666 payment by Safeco constituted a payment on behalf of a person who may be legally responsible. The uninsured motorist payment by USAA did not.
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Neff, J.
Defendant was convicted by a jury of delivery of less than fifty grams of a substance containing cocaine. MCL 333.7401(2)(a)(iv); MSA 14.15(7401) (2)(a)(iv). Defendant was also charged as a second offender under MCL 333.7413(2); MSA 14.15(7413)(2). Defendant was sentenced to eight to forty years in prison, to run consecutively to a ten-year sentence he received in the federal court system. Defendant appeals his conviction and sentence as of right and we affirm.
i
After being arrested for the instant charge, defendant was released from custody. Less than a month after being released, defendant was arrested by federal agents for unlawful possession of marijuana and conspiracy to possess with intent to deliver marijuana. The federal case came to trial first and defendant was sentenced to a minimum ten-year prison term.
n
Defendant first argues that the trial court erred in ordering his sentence in this matter to run consecutively to his federal sentence. We find no error in the trial court’s ruling.
This issue requires this Court to consider MCL 333.7401(3); MSA 14.15(7401)(3), which provides in pertinent part:
A term of imprisonment imposed pursuant to subsection (2)(a) . . . shall be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony. [Emphasis added.]
Defendant raises a number of arguments to support his contention that “another felony” in this statute refers only to felonies under state law.
A
Defendant argues that a narrow definition of “another felony” is required because previous case law has held that a court must have express authority to order consecutive sentences and because penal statutes are to be strictly construed.
This argument raises a question of statutory construction. The goal of statutory construction is to effect the intent of the Legislature. People v Morris, 450 Mich 316, 325; 537 NW2d 842 (1995). In its opin ion in Morris, our Supreme Court recently construed the definition of “another felony” in § 7401(3) and found that it is to be liberally construed for the protection of the health, safety, and welfare of the people of this state. Id. at 326-327. The Court then looked to the intent of the Legislature when enacting § 7401(3), and determined that the provision is intended to deter commission of certain controlled substance offenses by mandating that sentences imposed for the enumerated drug crimes run “consecutively to sentences imposed for other felonies.” Morris, supra at 327. Thus, according to the Michigan Supreme Court, a broad interpretation of § 7401(3) is warranted absent a convincing indication by the Legislature to the contrary or a convincing argument that a limited application would further the goal of the statute. Morris, supra at 327.
We find no indication by the Legislature that it meant to limit the definition of “another felony” to only state-law crimes. Further, we fail to see how limiting the scope of the definition of “another felony” to only state crimes would further the legislative intent of deterring the commission of the enumerated drug crimes. Quite to the contrary, we conclude that including federal felonies fits well within this legislative intent.
B
Defendant next argues that the definition of felony in the Michigan Penal Code, MCL 750.1 et seq.; MSA 28.191 et seq., should be used to determine the scope of the definition of “another felony” in § 7401(3). MCL 750.7; MSA 28.197 provides:
The term “felony” when used in this act, shall be construed to mean an offense for which the offender, on conviction may be punished by death, or by imprisonment in state prison. [Emphasis added.]
Contrary to defendant’s argument, however, this statute specifically provides that the definition provided therein applies to that act only, and the statutory provision in question here is not part of that code, but part of the Public Health Code. MCL 333.1101 et seq.-, MSA 14.15(1101) et seq. Thus, the definition of felony in the Michigan Penal Code does not control this case. Further, as noted above, such a restrictive definition would run contrary to the legislative intent of § 7401(3).
Construing the definition of felony to include federal felonies is also consistent with our Supreme Court’s holding in Morns, supra at 337, that the definition of “another felony” in § 7401(3) is to include “any felony for which the defendant has been sentenced either before or simultaneously with the controlled substance felony enumerated in § 7401(3) for which a defendant is currently being sentenced.”
c
Defendant next argues that allowing state courts to order sentences to run consecutively to federal sentences would potentially violate the principle of proportionality. See People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Defendant correctly points out that when a court orders that sentences run consecutively, the court must generally determine whether each individual sentence is proportionate regardless of the consecutive nature of the sentences. See People v Clark, 207 Mich App 500, 502; 526 NW2d 357 (1994). From this statement of law, defendant argues that because the state court cannot pass on the sentence imposed by the federal court, it cannot determine the proportionality of each individual sentence, and thus the rule of proportionality could be violated.
This argument, however, goes too far. Because the previous sentence has already been imposed, the proportionality determination regarding that sentence has already been made. If defendant’s federal sentence is illegal, he may address that concern in the federal courts. FR App P 4(b). Further, were we to follow defendant’s suggestion, then a state court would also be barred from ordering a sentence to run consecutively to a state sentence ordered by another state court. As a general rule, a defendant may not collaterally attack a sentence imposed in an unrelated matter. MCR 6.508(D). We are convinced that all that is required is for the trial court to determine that the sentence in the case before it is proportionate.
D
Finally, defendant argues that his sentence is invalid because the prosecutor manipulated the trial in this matter by allowing the federal case to proceed first in order to afford the state court the opportunity to order his sentence to run consecutively to his federal sentence.
Defendant, however, failed to prove that the delays in this case were due to the prosecutor. Indeed, the sentencing record reflects that the state trial was delayed at the behest of defendant’s initial trial counsel. This Court will not allow defendant to harbor error as an appellate parachute. See People v Barclay, 208 Mich App 670, 673; 528 NW2d 842 (1995). Further, defendant never made a request for a speedy trial, and his trial began approximately nine months after his arrest. We find no error. See People v Simpson, 207 Mich App 560, 563-564; 526 NW2d 33 (1994).
E
We conclude that the trial court is empowered by § 7401(3) to order a state sentence to run consecutively to a sentence imposed for any other felony, including federal felonies.
m
We will briefly address defendant’s remaining issues.
A
Although defendant argues that the trial court erred in failing to recognize its discretion in sentencing defendant, the sentencing transcript demonstrates that the trial court was aware of its discretion.
B
Defendant next argues that his eight-year minimum sentence violates the principle of proportionality. In light of the circumstances surrounding this offense and the offender, we disagree. People v Gatewood (On Remand), 216 Mich App 559; 550 NW2d 265 (1996).
c
Finally, we disagree with defendant’s assertion that insufficient evidence existed to support his conviction. As defendant notes, this Court will generally not overturn a conviction on the basis of the credibility of a witness, and we decline to do so in this case. See People v DeLisle, 202 Mich App 658, 660; 509 NW2d 885 (1993).
Defendant’s conviction and sentence are affirmed. | [
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] |
Griffin, J.
Petitioner appeals as of right from an order denying its motion for a rehearing of a judgment from the Michigan Tax Tribunal, Small Claims Division. The dispositive issue presented is whether hearing officers are authorized by law to decide motions for a rehearing. We hold that they are not and that the tribunal erred in delegating to a hearing officer its statutory duty to decide petitioner’s motion for a rehearing. Accordingly, we reverse and remand for a ruling by a tribunal member with respect to petitioner’s motion.
In 1994, petitioner appealed to the Tax Tribunal, Small Claims Division, the adjusted tax assessment on its developed real property by the respondent. Following a hearing at which the parties debated the merits of the competing property appraisals, a hearing referee found the methodology of respondent’s appraisal most accurate and ordered the tax assessment on petitioner’s property increased by almost $50,000. Petitioner contested the validity and thoroughness of the hearing referee’s factual findings and requested a rehearing before a member of the Tax Tribunal. However, petitioner’s motion for a rehearing was denied, not by a tribunal member, but by a different hearing officer.*
On appeal, petitioner argues that the tribunal unlawfully delegated to a hearing officer its statutory responsibility to decide petitioner’s motion for a rehearing. Petitioner contends that pursuant to MCL 205.762(3); MSA 7.650(62)(3), only tribunal members are authorized to rule whether a movant has demonstrated good cause for a rehearing. We agree.
Before its 1993 amendment, MCL 205.762(3); MSA 7.650(62)(3) (in pertinent part) afforded parties aggrieved by hearing referee rulings the right to a rehearing de novo before a tribunal member:
Within 20 days after issuance of an order by a hearing referee, a party may request a rehearing by a tribunal member which hearing shall be de novo.
The statute was amended in 1993 replacing a rehearing de novo as of right with a rehearing by leave of the tribunal for good cause shown. 1993 PA 21, effective April 14, 1993. Since April 14, 1993, MCL 205.762(3); MSA 7.650(62)(3) has provided in part:
Within 20 days after issuance of an order by a hearing referee, by leave of the tribunal and upon good cause shown, a party may request a rehearing by a tribunal member, which rehearing shall not be limited to the evidence presented before the hearing referee.
The Senate and House bill analyses of the 1993 Tax Tribunal amendments indicate that the change in the rehearing rights with respect to orders of the Small Claims Division was made to improve the administrative efficiency of the tribunal. House Legislative Anal ysis, HB 4334 (H-2), March 2, 1993, states that a representative of the Tax Tribunal appeared before the House taxation committee in support of the bill. The Senate Fiscal Agency Analysis, HB 4334 (H-2), March 22, 1993, describes the revised rehearing rights as follows:
Rehearings of small claims cases before a Tax Tribunal member would be restricted to those cases for which the Tribunal found that there was good cause for a rehearing, and rehearings no longer would be de novo. [Emphasis added.]
Pursuant to MCL 205.703(e); MSA 7.650(3)(e), “ ‘Tribunal’ means the tax tribunal.” The Tax Tribunal consists of seven members who, subject to Senate confirmation, are appointed by the Governor to four-year terms. MCL 205.721; MSA 7.650(21). A “tribunal member” is a tribunal judge, not a hearing officer or hearing referee. Hodgson v Birmingham, 199 Mich App 490, 491; 502 NW2d 748 (1993), citing 1981 AACS, R 205.1101(g). Indeed, a close reading of the statute that provides the tribunal authority to appoint hearing officers, MCL 205.726; MSA 7.650(26), reveals that the Legislature intended a clear distinction between the roles of hearing officers and “the tribunal.” There is no statutory language suggesting that the two positions have overlapping functions. Further, the Legislature has not authorized the tribunal to delegate its rehearing responsibilities to hearing officers. It appears clear that the only role the Legislature contemplated for hearing officers is to “hold hearings.” See MCL 205.726; MSA 7.650(26), MCL 205.761; MSA 7.650(61).
Under the amended statute, a rehearing is allowed only “by leave of the tribunal.” Further, the statutory duties afforded hearing officers do not include the authority to rule on motions for a rehearing. Accordingly, we hold that tribunal members, not hearing officers, must rule on requests for a rehearing and decide whether good cause is demonstrated. The tribunal may not delegate to hearing officers a responsibility that has been statutorily directed to the tribunal unless there is an accordant statutory provision allowing for the delegation of such authority. See Hodgson, supra. Here, no such enabling provision is either expressed or implied. Because the tribunal erred in delegating to a hearing officer its authority to decide whether petitioner had shown good cause for a rehearing, we remand for a ruling by a tribunal member on petitioner’s motion for a rehearing.
In view of our disposition, we find it unnecessary to address the additional issues raised by petitioner.
Reversed and remanded. We do not retain jurisdiction.
According to respondent’s brief, the hearing officer who denied petitioner’s request for a rehearing is an “administrative law judge” assigned by the tribunal to review decisions of subordinate hearing referees.
Although in 1995 the statute was again amended, see 1995 PA 232, effective December 19, 1995, the amendments modify the wording, not the substance, of this section. | [
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O’Connell, RJ.
The present appeal from the circuit court’s determination that a writ of superintending control may not be issued is predicated on a prior action brought in the small claims division of the district court. In that action, Armour, Inc., brought suit against Richard Schomaker, alleging breach of contract. Armour prevailed on the merits, and a judgment was entered for Armour. Schomaker was unhappy with the judgment and brought a motion for a new trial, relief from judgment, or modification of judgment, which motion was denied.
Because a party appearing in small claims court waives the right of appeal, Schomaker had no direct appellate recourse following the denial of his postjudgment motion. He therefore brought this independent action in the circuit court, seeking a writ of superintending control. Schomaker (hereinafter plaintiff) alleged that the district court judge who had heard the small claims action had made substantive errors of law in arriving at his verdict, and, accordingly, plaintiff requested the circuit court to utilize its extraordinary power of superintending control to rec tify those errors. This action was, in effect, an indirect appeal. Armour (hereinafter defendant) promptly moved for summary disposition, which motion was granted by the circuit court. Plaintiff now appeals as of right. We affirm.
The Legislature created the small claims division of the district court to furnish “a convenient and economical means of settling disputes where small sums are involved. The sole object of small claims hearings is ‘to dispense expeditious justice between the parties.’ MCL 600.8411 [MSA 27A.8411].” Marshall v Pech, 95 Mich App 454, 458; 291 NW2d 78 (1980). To this end, small claims trials are conducted “in an informal manner so as to do substantial justice between the parties according to the rules of substantive law.” MCL 600.8411(2); MSA 27A.8411(2). While witnesses may testify, “the statutory provisions or rules of practice, procedure, pleading, or evidence” are, in general, suspended. Id. Parties may not be represented by an attorney. MCL 600.8408(1); MSA 27A.8408(1). There is no jury and no right of appeal. MCL 600.8412; MSA 27A.8412.
As stated in Marshall, supra, p 458, “[u]se of this court is entirely voluntary.” A party dissatisfied with the limitations of the small claims division is free to have the matter removed before trial to the general civil division of the district court. MCL 600.8408(4); MSA 27A.8408(4). Once a matter has been removed to the district court, the rules of evidence obtain, and the right to a jury and to appeal are retained. Thus, one subjecting himself to the jurisdiction of the small claims court does so voluntarily.
In the present case, plaintiff voluntarily submitted to the jurisdiction of the small claims court and, accordingly, had no right to appeal the judgment of the small claims court. Plaintiff chose not to exercise his right to have the matter removed to the general civil division of the district court. Moreover, plaintiff expressly acknowledged in a waiver of rights form that he was forgoing his right of appeal by having the dispute heard in the small claims court. Therefore, it is beyond question that plaintiff had no right to appeal the adverse small claims judgment.
Plaintiff has not appealed directly that judgment, but has instead attempted to effect an indirect appeal by filing a complaint for superintending control. As set forth in In re People v Burton, 429 Mich 133, 140; 413 NW2d 413 (1987), superseded by statute on other grounds as stated in People v Reed, 198 Mich App 639, 643; 499 NW2d 441 (1993), aff’d 449 Mich 375; 535 NW2d 496 (1995), “a complaint for superintending control is characterized as a separate civil action.” To quote at length from People v Flint Municipal Judge, 383 Mich 429, 432; 175 NW2d 750 (1970):
The superintending court does not substitute its judgment or discretion for that of the magistrate; neither does it act directly in the premises. Rather it examines the record made before the magistrate to determine whether there was such an abuse of discretion as would amount to a failure to perform a clear legal duty; and in such case, the superintending court orders the magistrate to perform his duty.
The process is not, properly speaking, an appeal. It is rather a whole new lawsuit, with different parties and different purposes.
Here, plaintiff contends that the small claims court “failed to perform its clear legal duty,” Flint Municipal Judge, supra, to apply the substantive law. While many of the rules of evidence and procedure are inapplicable in the small claims court, the court is nevertheless bound to apply the substantive law of Michigan. MCL 600.8411(2); MSA 27A.8411(2). As characterized by plaintiff in his brief on appeal, “[w]ere the rule otherwise, the Small Claims Division would operate much like television’s ‘People’s Court,’ where Judge Joseph Wapner consistently made up the law to suit his whim and for good dramatic or theatrical effect.” Plaintiff submits that where a small claims judge fails to perform his legally mandated duty to apply the substantive law, the proper remedy is a writ of superintending control. Because such an action is not an appeal but is an independent action, plaintiff argues, his waiver of his right of appeal does not waive his right to seek a writ of superintending control.
Although it is something of a surprise to this Court, there is precedent supporting plaintiff’s position. In Marshall, supra, a party disgruntled with a judgment entered in the small claims court filed a complaint in the circuit court seeking a writ of superintending control. The party argued that the small claims judge had misapplied the substantive law of Michigan, and, because of this, “relief should have been available by means of a writ of superintending control.” Id. p 459. This Court countenanced this method of indirect appeal and proceeded to address the party’s argument on its merits.
While the panel in Marshall ultimately concluded that the small claims judge had, in fact, applied the correct substantive law, the disposition of Marshall does not vitiate plaintiffs argument. As plaintiff correctly notes, this Court, by addressing the party’s argument in Marshall, implicitly endorsed the very approach taken by plaintiff-the filing of a complaint for superintending control where the small claims judge is alleged to have erroneously applied the law.
Nevertheless, we decline to follow Marshall. This Court is not bound by the panel’s decision in Marshall. See Administrative Order No. 1996-4. In light of the Supreme Court’s subsequent decision in Burton, supra, we conclude that the reasoning of Marshall has been implicitly overruled.
The Marshall decision rested on the correct assumption that a complaint for superintending control is generally regarded as an independent action. Because such a complaint is considered an independent action, the statute barring the appeal of a small claims judgment, it was implicitly held, did not apply to the action seeking a writ of superintending control. Therefore, the Marshall panel proceeded to address the merits of the party’s complaint seeking superintending control.
However, in Burton, supra, p 140, our Supreme Court held that “[although a complaint for superintending control is characterized as a separate civil action,” such a complaint will not be treated as an independent action where it is used solely to circumvent valid limitations of a party’s right of appeal. In Burton, the circuit court granted a criminal defend ant’s motion for a new trial following a key witness’ recanting of her testimony. At that time, the prosecution had no authority to appeal an order granting a new trial, though that restriction has since been eased. See Reed, supra. Therefore, having no right to direct appellate review, the prosecution instead sought a writ of superintending control. This Court heard the prosecution’s argument pursuant to MCR 3.302(D)(2) and granted the writ, reversing the order granting the defendant’s motion for a new trial.
In Burton, the Supreme Court reversed this Court’s decision to issue the writ of superintending control. In concluding that a writ of superintending control would not lie, the Supreme Court looked to the policies underlying the original action — a criminal prosecution and the limitations imposed on the prosecution’s right to appeal. The Court examined at length the policy justifications meriting strict limitation of the prosecution’s right to appeal. While cognizant of the fact that a complaint for superintending control is distinct from the action on which it is predicated, the Court nonetheless reasoned that a writ of superintending control was not warranted because the policy considerations restricting the prosecution’s right of direct appeal applied with equal force in the context of the prosecution’s attempt to effect an indirect appeal. The Court “rejected] the suggestion that where an appeal is unavailable, an order of superintending control is always available,” instead stating that “[wjhether an order of superintending control should issue depends upon the circumstances in the specific case.” Burton, supra, p 142. Because the prosecution’s right of direct appeal was shaiply limited, the Court concluded that the prosecution’s right of indirect appeal (through an action seeking an order of superintending control) should be considered with this in mind. Under the facts of that case, the Court reasoned that such an order was not warranted.
In the present case, we conclude, in accordance with Burton, that a writ of superintending control is not warranted. The goal of the small claims division of the district court is to effect expeditious justice. MCL 600.8411(2); MSA 27A.8411(2); Marshall, supra, p 458. To further this end, the rules of pleading, procedure, and evidence are relaxed, MCL 600.8411(2); MSA 27A.8411(2), and the right of appeal is waived. MCL 600.8412; MSA 27A.8412. Plaintiff knowingly and voluntarily agreed to submit to the jurisdiction of the small claims court. He expressly acknowledged that he was waiving his right to appeal. Given the policy considerations underlying the small claims court and plaintiff’s voluntary accession to its jurisdiction, we conclude that to allow plaintiff to seek a writ of superintending control would undermine the very purpose of the court, just as the Court concluded in Burton that to allow the prosecution to obtain a writ of superintending control would defeat the limitations on the prosecution’s right to appeal in a criminal case. Accordingly, we agree with the circuit court that a writ of superintending control may not be issued under the present facts.
Because of our conclusion, we do not reach the merits of plaintiff’s contention that the small claims court made errors of substantive law in arriving at its verdict. However, we would note that a “Wapneresque” verdict is the risk a party takes when having his case heard in the small claims court. A party exchanges the right to appeal an erroneous ruling, among other rights, for the speed, informality, and decreased cost of the small claims court. It is presumed that each party has weighed the benefits of the small claims court against its disadvantages. With respect to errors of law, we presume that such errors will occur in the small claims court because they occur in every other court. However, given the goals of the small claims division of the district court and the fact that every party appearing in that court has expressly agreed to its limitations, we do not hesitate to state that in regard to appeals from the small claims court, the district judge is the Supreme Court of the small claims division.
Affirmed.
A right of appeal does exist where a small claims action is heard by a magistrate, rather than a district court judge. MCL 600.8427; MSA 27A.8427. In this situation, either party may appeal the decision of the magistrate to the small claims division of the district court, where the matter will be tried de novo by a district court judge. Id. Because the instant case was heard by a district court judge rather than a magistrate, the present matter falls within the general rule that a party has no right to appeal a judgment entered in a small claims action. | [
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] |
Wiest, J.
This is an appeal from a peremptory writ of mandamus, issued by the circuit court, requiring the managing officer of the city of Saginaw to appoint two members of the civil service commission regulating the employment of members of the fire department of the city, as provided by Act No. 78, Pub. Acts 1935 (Comp. Laws Supp. 1940, §2730-1 et seq., Stat. Ann. §5.3351 et seq.), and made operative in that city under its réferendum provisions by a majority vote of the electors voting thereon December 2, 1935. The city manager refused to make the appointments, claiming the act abridges the right of municipal home rule, constitutes an unauthorized amendment of the city charter, represents class legislation, is not mandatory,- its title does not sufficiently state its purpose, and its adoption was not by a majority of all the electors of the city.
The act is a long one, and provides that it shall not take effect in any city or village until approved by a majority .of the electors voting thereon at an election at which the question of adoption of the act for that city is properly submitted. Under such •provision a majority vote of such electors was sufficient to render the act effective. Title to the act, while short, is comprehensive of its purpose and sufficient. The city electorate, by adopting the act, has barred its administrative officers from questioning its validity on the grounds alleged. The referendum provision recognized a change could not be operative except at the will of a majority of the city electorate voting thereon.
The provision in section T of the act, reading— “Within thirty days after this act shall take effect (which means by referendum) there may be created a civil service commission in each city, village or municipality of any population whatsoever having a fire department, any of the members of which are full paid by said city,” is to be read in connection with section 17a of the act:
“The foregoing provisions of this act shall not take effect in any city or village until approved by a majority of the electors voting thereon at an election at which the question of adoption of this act for that city or village is properly submitted. # * *
“If the majority of the qualified electors of such city or village vote in favor of the adoption of this act, then the provisions thereof shall be in full force and effect in such city or village and not otherwise.”
This constituted the act effective in the city of Saginaw at the time of its adoption by a majority of such electors.
Section 2 of the act provides:
“This civil service commission shall consist of three members, two of whom shall be appointed by the person or group of persons who, acting singly or in conjunction, as a mayor, city manager, council, common council, or otherwise, is or are vested by law with power and authority to select, appoint, or employ the chief of a fire department in any city, village or municipality prior to the enactment of this act: # # One for a period of six years from the date of his appointment, one for a period of two years from the date of his appointment, the other member of'the commission shall be selected by the paid members of the fire department and he shall serve for a period of four years from the date of his appointment.”
The paid members of the fire department made their selection of relator in this case but the city manager, by refusing to appoint the other two members of the commission, prevents operation of the act.
We must hold, as did the circuit judge, that the act is operative in the city of Saginaw and the provisions of the statute adopted by the city under the referendum command appointment of commissioners by the city.
The writ of mandamus was properly issued and the proceeding in the circuit court is affirmed, but without costs, a public question being involved.
Chandler, C. J., and Boyles, North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Chandler, C. J.
This is a bill to quiet title of plaintiffs as lessees of two oil leases covering a certain piece or parcel of land situate in the county of Allegan, particularly described as follows:
The southeast one-quarter (SE£) of the southeast one-quarter (SEJ) of section 2, township 4 north, range 13 west.
These leases were assigned to plaintiffs by Arthur F. Shaw, husband of appellant, in pursuance of the decree affirmed by us with a minor modification, not relevant here, in Redman Oil Co. v. Shaw, 291 Mich. 8. The decree in the circuit court for the county of Allegan did not award any damages to the plaintiff but instead determined, and we quote from that decree:
“8. That Josephine Shaw, the wife of said defendant, has no dower interest, inchoate or otherwise, or other right or title in and to any of said leases hereby decreed to be assigned and transferred by said defendant to said plaintiff.”
As Josephine M. Shaw was not a party to the proceedings, the decree was not binding on her. She has written a letter to the buyer of the oil produced by plaintiffs from said leases that she was asserting a dower interest in all oil produced from said leases and directing the purchaser to pay a dower interest to her. Because of the letter, the buyer has withheld from plaintiffs’ portion of the moneys owing by it for oil produced from said leased land, and the plaintiffs bring this bill to clear the above cloud on their title to the two leases. Both leases contain a clause limiting their life to five years, “and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.”
The sole issue is whether the wife of the lessee has a dower interest in the above oil and gas leases. The statute, 3 Comp. Laws 1929, § 13072 (Stat. Ann. § 26.221), provides:
“The widow of every deceased person shall be entitled to dower, or the use during her natural life, of one-third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof. ’ ’
Defendant’s right of dower depends solely upon whether defendant’s husband “was seized of an estate of inheritance” by being lessee on the two oil and gas leases. The terms “dower,” “seized,” and “estate of inheritance” are not defined by statute, but this statute is, in substance, the common-law rule of dower, Cummings v. Schreur, 239 Mich. 178; May v. Rumney, 1 Mich. 1, and we must look to the common-law definitions.
The first requirement is, there must be seizin of the husband during coverture. Sagendorph v. Lutz, 286 Mich. 103; Flynn v. Flynn, 171 Mass. 312 (50 N. E. 650, 42 L. R. A. 98, 68 Am. St. Rep. 427). “Seizin” has been defined by Black in his Law Dictionary (2d Ed.), p. 1068, wherein he quotes Brown, “The word [seizin] still retains its original signification, being applied exclusively to the possession of land of a freehold tenure, it being inaccurate to use the word as expressive of the possession of leaseholds or terms of years, or even of copyholds.”
Also, see 1 Tiffany on Real Property (2d Ed.), p. 29, § 14 (citing Littleton, § 324; Coke on Littleton, pp. 200b, 201a; Challis, Real Property, p. 47), wherein it is stated:
“ [Seizin] came finally to be used only in reference to possession claiming a freehold estate; he being said to be ‘ seized, ’ while a tenant for years or at will was said to be merely possessed.”
The remaining requirement is that the estate be one of inheritance. Of this 1 Tiffany on Real Property (2d Ed.), § 213, pp. 747, 748, citing Littleton, § 36, and 2 Blackstone’s Commentaries, p. 131, says:
“Since the estate of dower is derived out of the estate of the husband, his estate must, in order that the wife be endowed, be one of inheritance — that is, either a fee simple or a fee tail. * * *
‘ ‘ There is no right of dower at common law if the husband had merely a chattel interest in the land, such as a term for years, however long it may have to run, or even though it be renewable forever, nor can there be dower in an estate at will.”
Now, was appellant’s husband seized of a fee simple estate or an estate of inheritance1? Appellant contends that the interest of her husband was an interest in land. That is not the issue, the question being the nature of such interest. In Jaenicke v. Davidson, 290 Mich. 298, we found such interest to "be an interest in real property, but we said at page 303:
“A transfer of title or of a right in the unsevered oil and gas, together with the right to go upon the land for the purpose of taking the oil and gas therefrom, involves a granting of rights in real estate; and the instruments granting such rights are appropriately denominated ‘leases.’ ”
In view of this, appellant takes the position that the leases involved are “perpetual” leaseholds which are equivalent to fees simple of which her husband was seized. Appellant relies solely on Ralston Steel Car Co. v. Ralston, 112 Ohio St. 306 (147 N. E. 513, 39 A. L. R. 334). In 39 A. L. R., at page 340, the annotator states:
“An estate for years, no matter how many, being a mere chattel interest, she had no common-law right of dower in leaseholds. See 9 R. C. L., title ‘Dower,’ § 15, p. 573. If, therefore, a widow is to be given dower in a perpetual leasehold, it must be by virtue of a legislative alteration of the common-law character of such leasehold, or by virtue of a statute expressly giving her dower therein.
‘ ‘ The courts of this country have had occasion to hold that leaseholds are not real property within the meaning of dower statutes, * * * even though the lease was for 999 years [citing appropriate and ample authority].”
And just such a legislative alteration mentioned by the annotator was involved in the Ralston Case. The Ohio legislature provided by General Code, § 8597:
“Permanent leasehold estates, renewable forever, shall be subject to the same law of descent as estates in fee are subject to by the provisions of this chapter.”
There is no lease “renewable forever” involved here; no Michigan legislative enactment of the above type, but on the contrary, the Michigan legislature has recognized the impermanency of oil and gas leases and provided for a method of the recording of the termination upon forfeiture. 3 Comp. Laws 1929, _§§ 13506, 13507 (Stat. Ann. §§ 26.1161, 26.1162). Oil and gas cannot be produced forever within the terms of the lease, and upon the halting of production, the lease is terminated, and the above statute provides a method to have on record the expiration of the lease.
Thus, appellant’s husband was but a lessee for a determinable term and was not seized of an estate of inheritance within the meaning of the Michigan statute. Nothing we have said in Be Seager, 92 Mich. 186 (16 L. R. A. 247), is contrary to the holding that the wife of the lessee has no dower rights; in fact, because it recognized the dower right of the widow of the lessor, by implication it excludes the possibility of the wife of the lessee having dower in the same subject matter. See 17 Am. Jur., title “Dower,” § 27, p. 678.
The decree of the lower court is affirmed, with costs to plaintiffs.
Boyles, North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred.
Now section 10503-11, Baldwin’s Ohio Code (1934).—Reporter. | [
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Sharpe, J.
This is a chancery case for an accounting growing out of the operations connected with the drilling of an oil well on what is known as the Berens lease. Plaintiffs, owners of interests in the Berens lease and well, filed a bill of complaint against the following defendants: John P. Battema, Arthur J. Boeve, Peter Luyendyk, Sam Luyendyk, John Luyendyk, John R. Cox, and Edward B. Strom, asking that the defendants account for the money re ceived, that the fractional interests of the parties he determined, that a receiver be appointed, and that defendants be restrained from transferring any interest in the well and lease.
In the summer of 1937, defendants Battema, Boeve, Peter and Sam Luyendyk, and others were financially interested in an oil lease known as the Bos lease and had dealings with one John G. Turner to drill the well. After receiving some money therefor, Turner defaulted. In November or December, 1937, Turner sold 10/32 interests in an oil and gas mining lease, known as the Berens lease, on land in Allegan county to some of the defendants and others and conveyed a mineral deed thereto to Battema. About the same time, Turner approached defendants John R. Cox and Edward B. Strom, who had been interested in the production and drilling of oil wells, and represented to them that he had the Berens lease.' Turner, Strom and Cox entered into an agreement whereby Strom and Cox, as partners, were to receive an overriding royalty of 1/16 interest and an assignment of 22/32 working interests for drilling the well.
It later developed that the Berens lease was in the name of Lydia Atkinson. There was a meeting of Battema, Cox, Strom, Turner, John Luyendyk, who seems to have represented his brothers Peter and Sam, and William Leahy, son of Lydia Atkinson. At this meeting it was agreed that if Battema would destroy the mineral deed on the Berens lease which he got from Turner, Leahy would get his mother’s consent to make a conveyance of this lease to Cox and Strom.
On January 6, 1938, Lydia Atkinson conveyed all of her interest in the Berens lease to Cox, reserving to herself 1/16 overriding royalty. On the same day, a written agreement was entered into between Cox and Battema that 15/32 of the working interests were to be assigned to defendant Battema. These interests were to compensate those interested parties who had suffered by the default of Turner in the above-mentioned dealings. The other 17/32 working interests and 1/16 overriding royalty were to be the property of Cox and Strom. It was also agreed that Cox and Strom would drill a well on this lease to the Traverse formation for $7,000, the money to be raised by the sale of 7/32 working interests of the Í7/32 working interests of Cox and Strom. Shortly after the above agreement was entered into, fractional interests from the 7/32 working interests were sold to some of the plaintiffs, the proceeds being turned over to Cox and Strom, and the drilling operations commenced.
About the middle of March, 1938, Cox and Strom dissolved partnership. At this time Cox and Strom had received about $4,000 for the drilling. In the settlement, Cox retained 3/32 working interests and the 1/16 overriding royalty out of the 10/32 interests originally owned by Cox and Strom. After a short time, during which Strom carried on drilling operations, a meeting was held with John, Peter and Sam Luyendyk, Boeve, Battema and Strom present at which time the previous drilling agreement was abandoned and a new drilling agreement was made whereby Strom turned over for sale 5/32 of the working interests received in settlement with Cox to be sold (in addition to the remaining 3/32 working interests originally agreed to be sold) and Strom was to be paid to complete the drilling as well as install a pump and the ground equipment for the reception of the oil. Strom estimated that the cost would be about $8,000 more.
Under both the partnership and Strom individually, as the drilling progressed each time that $1,000 was paid to the driller, a 1/32 working interest was assigned by tbe driller to Battema. As fractional interests were sold by Battema and associates, the purchaser was given a receipt, a copy of which reads as follows:
“In consideration of the sum of $1,000 cash in hand — receipt of which is hereby acknowledged— I do hereby agree — to assign — set over — and transfer to Dirk J. and Cora J. Scholten 1/32 working interest in and to oil well being drilled on 22-foot driveway of John G. Berens owner in the following described property: * * * 1
“Said _ assignment to cover working interests in and to oil and gas lease given by John G. Berens to Lydia Atkinson of North Muskegon, Michigan.
£ £ Said assignment also gives above named right to participate in other wells to be drilled on said lease if and when above named chooses to pay his or her proportionate share of moneys necessary to drill said well. ’ ’
The above receipt was followed by an assignment, the material language of which reads as follows:
‘ ‘Whereas, the said John P. Battema, hereinafter referred to as the first party, is desirous of selling an undivided 1/64 working interest in and to a 6/8 working interest in and to the oil and gas mining lease on said described premises and L. E. Powell of Kalamazoo, Michigan, hereinafter referred to as second party, is desirous of buying an undivided 1/64 working interest in and to the 6/8 working interest in and to the said oil and gas mining lease.
“Now, therefore, for and in consideration of the sum of $1 and other valuable considerations, receipt of which is hereby acknowledged together with the conditions, covenants and agreements hereinafter contained and set forth and to be performed and kept by the parties hereto, their successors and assigns, the said party of the first part does hereby assign, set over, transfer and convey unto the second party, his successors and assigns, an undivided 1/64 working interest in and to 6/8 working interest in the oil and gas mining lease aforesaid and all the rights thereunder or incident thereto including the well now being drilled on said described premises exclusive of the rig and other equipment used in drilling said well. * * *
“Be it also understood, however, that if and when said party of the first part desires to drill more wells on said lease herein described said party of the second part has full right to participate in said wells according to the amount of interests he holds in said lease if and when the party of the second part be willing to pay his proportionate share of money required to drill said wells. If, however, party of the second part chooses not to pay the required sum of moneys his interest in said lease shall be null and void excepting the interest he already has in the well that has been drilled and which has been designated as Berens Oil Well No. 1.”
It is conceded that the drilling of the well was completed. Plaintiffs filed a bill of complaint asking for an accounting and that a receiver be appointed. Defendant John R. Cox defaulted; and, before the trial, the case was dismissed as to John Luyendyk. Upon hearing on the order to show cause, a temporary receiver was appointed to operate the well. At the close of plaintiffs’ proofs, motions to dismiss the bill of complaint were made by each defendant and granted as to defendants Sam Luyendyk and Arthur J. Boeve.
The trial court in an opinion held that the moneys received from the sale of fractional interests was a common fund that belonged to all of the investors; and that whoever had charge of such fund stood in a fiduciary relationship to those that furnished it; and said:
‘ ‘ As against the others I am not saying that there is any case against them. I am not satisfied from this record whether there is or whether there isn’t, but I do say the right should be preserved to the trustee to pursue any remedies that he thinks he may have against the remaining defendants. ’ ’
Defendants Battema, Peter Luyendyk and Strom appeal. Defendants Battema and Strom contend that plaintiffs bought a fractional interest in and to the lease with a well to be put down; that the well was completed; that each and every plaintiff received exactly what he had paid for and what he was entitled to receive; and that plaintiffs had no right, title, or interest in and to the proceeds of the sale of the fractional shares of said lease. Strom also contends that he had no contractual relations whatever with any of the plaintiffs; and that he did not stand in a fiduciary relationship with the plaintiffs. Defendant Peter Luyendyk contends that he was not in a fiduciary relationship with any of the purchasers; that, assuming a fiduciary relationship, he rendered a complete accounting; and that he is not liable under the statute of frauds for any debt, default or misdoings of any other defendant.
It is to be noted that the trial court did not make any finding of fraud; in fact he dismissed plaintiffs ’ bill of complaint insofar as it related to charges of fraud and misrepresentation and in view of the fact that plaintiffs have not appealed, the issue of fraud and misrepresentation is not before this court. See Stephenson v. Golden, 279 Mich. 710.
We do not agree with the trial court’s finding that the moneys received from the sale of the fractional interests was a common fund. The facts in the case at bar show that Cox and Strom and later Strom individually had full responsibility and control of the drilling of the well. The record does not indicate that any of the plaintiffs were asked or expected to pay additional assessments for the completion of the well. There is some testimony that Battema and Peter Luyendyk used personal funds to pay labor claims in the completion of the well. We do not find that there was any promise of a refund to any of the interest purchasers. Edgar Mihnard, the only plaintiff to testify, said:
“The Court: The question, witness — he asked you whether you expected, from anything said, that there was going to be any refund of your money in case it didn’t cost that much to drill a well?
“A. He didn’t say that.
“Q. Nobody said that to you, did they?
“A. Not that there was going to be a refund, no. ’’
Under the facts shown in this case, the receipts and assignments defined the rights of plaintiffs. Such written instruments gave the purchasers the right to participate in the well being put down and, if other wells were drilled, to participate in those wells, if they chose to do so, by paying their proportionate share of drilling those additional wells.
We think the law is well settled that mere ownership of an undivided interest in an oil and gas lease does not make one a partner with the others.
In Billingsley v. Parmenter, 181 Okla. 315 (73 Pac. [2d] 869), Parmenter and Freeman owned a block of oil and gas leases. Holland, cross-petitioner, worked in drilling a well on the leased land and sought to foreclose a labor lien and to obtain a personal judgment against Parmenter, Freeman and Billingsley. As to a claim that Parmenter and Freeman sold Billingsley a one-third interest in the well and that Billingsley was a partner, the court said (p. 318):
“This contract, as allegedly modified by a subsequent oral agreement, provided that Billingsley should have a one-third interest in the lease and the well in question. That was the extent of the contract. There was no other evidence from which to draw the conclusion that Billingsley was a mining partner or joint, adventurer. He assumed no part in the management of the venture and had nothing to do with the operations; purchased none of the material and employed none of the labor. His contract as allegedly modified could have created no more than a cotenancy between him and Parmenter and Freeman. Parmenter and Freeman merely agreed to give him an interest in the well and lease for a specified sum. * # *
“To agree to assign an interest for a specified sum, in the absence of further circumstances indicating a mining partnership, cannot create such partnership. Billingsley paid his money for an interest in the lease, not for the operating expense. Parmenter and Freeman used the money for the latter purpose. ’ ’
In McAnally v. Cochran, 170 Okla. 368 (46 Pac. [2d] 955), the court said:
“As to what parties must do in order to create the relationship of a mining partnership, this court in the case of Gillespie v. Shufflin, 91 Okla. 72 (216 Pac. 132), held:
“ ‘In order to constitute a mining partnership, the parties must cooperate in developing a lease for oil and gas, each agreeing to pay his part of the expenses and to share in the profits or losses.’ * * *
“The mere holding of an interest in an oil and gas lease and leasehold estate with other cotenants and having knowledge that a well was being drilled thereon by one or more of the cotenants does not constitute ‘cooperation’ as contemplated by the authorities herein cited.”
See, also, Wammack v. Jones, 103 Okla. 1 (229 Pac. 159).
The record shows that Strom fully equipped the well and brought in what at first appeared to be a good producing well. His contractual relations were with Battema and his associates. He is not a holder of any interest in the well and he may not be charged with an accounting to plaintiffs.
As to defendants Battema and Luyendyk, we think the case is controlled by what we said in Lindemulder v. Shoup, 258 Mich. 679, 681:
“Both the plaintiff and the defendants-knew they were gambling; if the territory became proven territory, their lease would be valuable, and they would undoubtedly make a handsome profit; if the wells that were being sunk in the vicinity proved not to be productive, then the lease would not be valuable. The wells being sunk in the immediate vicinity of this land were not producing wells. Plaintiff lost his money along with the others who embarked in the enterprise, and for this loss, apparently, no one else is to blame.”
The bill of complaint is dismissed. Appellants may recover costs.
Chandler, C. J., and Boyles, North, Wiest, Bittzel, and Bushnell, JJ., concurred. Starr, J., did not sit. | [
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Boyles, J.
Plaintiff appeals from a decree dismissing his bill for divorce. Appellant raises a preliminary question for consideration before the case can be decided on its merits, as follows: “May a cross plaintiff withdraw her cross bill after the opinion 'of the court has been rendered and she has become dissatisfied with the property settlement proposed, without the consent of the cross defendant and without paying to cross defendant his costs?” This question is more completely stated in appellant’s brief as follows:
“Plaintiff does not challenge the right of the trial court to permit defendant to withdraw her cross bill even after opinion of the circuit judge and when she is dissatisfied with property settlement, for that seems to be the rule in this State after the case of Merten v. Merten, 279 Mich. 33 (1937). But plaintiff does challenge the court’s right to do this without following the rule (Court Rule-No. 38) and obtaining the cross defendant’s consent and upon the payment of costs.”
The facts necessary to a decision of this question are as follows. Issue was joined upon appellant’s bill of complaint, the answer and appellant’s reply; and upon a cross bill filed by the defendant and the answer of plaintiff (cross defendant) thereto. The parties proceeded to trial and much testimony was taken which occupies 250 pages of the printed record. At its conclusion the court announced in a lengthy opinion that the plaintiff had failed to prove facts entitling him to a decree of divorce, and that the court would grant the defendant (cross plaintiff) a decree upon her cross bill. The court requested counsel to confer and try to work out a satisfactory agreement as to a property settlement. Apparently the parties failed to agree, whereupon the defendant, exercising her prerogative to change her mind, decided she did not want a divorce. Her counsel thereupon filed a motion to withdraw the cross bill and dismiss the bill of complaint. On hearing this motion was granted over plaintiff’s objection that the cross bill could not be withdrawn without plaintiff’s consent and payment of costs. The court entered a final decree withdrawing the cross bill and dismissing plaintiff’s bill of complaint.
In the Merten Case (279 Mich. 33), decided in 1937 under circumstances essentially the same as those in the case at- bar, this Court held that a defendant (cross plaintiff) might withdraw her cross bill. This decision was based upon Court Rule No. 38, § 1, Michigan Court Eules (1933), which at that time was as follows:
“Plaintiff may, at any time, upon notice to the defendant or his attorney, and on the payment of costs, discontinue his suit by order filed in the cause, except where a recoupment or a set-off is asserted by the defendant.”
We held that this rule applied also to chancery' cases. However, this rule was amended April 20, 1938, effective January 1, 1939, since the Merten Case was decided, and before the case at bar was started.. The words added by this amendment are indicated below and the rule now reads as follows:
“Plaintiff may at any time, upon notice to the defendant or his attorney, and on the payment of costs, discontinue his suit by order filed in the court, except where recoupment or set-off is asserted by the defendant; and except where a defendant shall have entered upon his defense in open court, unless with the consent of the defendant. The like rule shall apply in respect to a party asserting a set-off, cross bill or cross declaration.”
In the case at bar the parties had entered upon their respective defenses in open court before the cross plaintiff moved to withdraw her cross bill. In fact, the taking of testimony had been completed by both parties and the cause submitted, before cross plaintiff sought and was allowed to withdraw her cross bill without the consent of the cross defendant and without payment of costs. The decree is in direct violation of the rule.
It is no answer to this obvious breach of the rule to say that the court might have reached the same result by denying the motion to withdraw and then entering a decree dismissing both the bill of complaint and the cross bill. This would necessarily involve the question of costs. The court allowed defendant $1,621.60 attorney fees and costs in the decree dismissing the bill of complaint. The propriety of this allowance is questioned by plaintiff and the amount is also put in issue by the defendant on a cross appeal.
Under the rule as amended, the court erred in allowing the defendant (cross plaintiff) to withdraw her cross bill after cross defendant had entered upon his defense to the cross bill, against his objection, and without payment of costs. The case stands upon the bill and cross bill and the respective answers, with the proofs taken thereon in open court.
It would serve no useful purpose to enter into an extended discussion of the testimony. Much of it is of an unsavory character, and the respective claims of the parties have been ably set forth at length in five briefs filed by counsel. The court below, in a lengthy opinion, concluded that “the real difficulty in this case is this sex problem. ’ ’ The court justified defendant’s conduct largely on the ground that it had been induced by plaintiff’s own conduct and found defendant entitled to a decree, in the following conclusion:
“I am inclined to the view that the withdrawal of affection on the part of the husband from the wife, her living in the house with a man as she has for five years without any affection, that is a man who is married to a woman, living with her as his wife, and withdraws his affection in that way, is withdrawing from her a substantial right that she is entitled to and the withdrawal of it is substantial ground for divorce. ’ ’
This ignores the question whether the plaintiff had reasonable grounds for withholding his affection. We have. examined this record at length and conclude there is convincing testimony that preponderates in plaintiff’s favor in that regard. There is testimony that defendant frequently drank intoxicating liquor to excess, while intoxicated became violent and abusive toward plaintiff, physically attacked the plaintiff, threw wine in his face, frequently called plaintiff vile and obscene names in the presence of others, accused him of associating with other women, threatened him with a loaded gun. At the final separation, defendant told plaintiff not to come back or she would blow Ms brains out. No doubt most of this conduct was induced by intoxication, wbicb defendant seeks to excuse by showing that plaintiff kept liquor in tbe home, furnished it for defendant’s use, and by bis conduct encouraged drinking. However, tbe record shows that plaintiff did not drink to excess and frequently sought to curb defendant’s appetite for liquor. Much of tbe testimony in this regard is denied by defendant. We are convinced from a review of tbe entire record de novo that tbe evidence clearly preponderates in plaintiff’s favor and establishes ample grounds for divorce.
Tbe parties bad been married 15 years when tbe bill of complaint was filed. There were no children. Plaintiff admits owning property valued at $75,000. There was testimony indicating it might have a value over $100,000, or a possible maximum of $125,000. Defendant contributed nothing to this property. In first announcing a decree for defendant, tbe court requested counsel to confer and prepare a decree for alimony and in settlement of property rights wbicb would be satisfactory to both parties and tbe court. A proposed decree was prepared and is in tbe record. It would allow deféndant $5,000 cash, a certain automobile and certain designated articles of household goods and jewelry, and require tbe plaintiff to deliver $30,000, face value, of certain debentures of tbe Groodspeed Realty Company to a baMc, in trust, to pay over tbe entire net income from said trust property to tbe defendant. It contained a provision that if tbe gross income, should fall below $125 per month, or should tbe defendant require any portion of tbe principal because of sickness or an emergency, tbe trustee should apply to tbe court for instructions and tbe court might permit tbe trustee to use portions of tbe principal. If defendant remarried, one-half of the trust fund was to he returned to plaintiff, or, upon her death, the remaining trust property should be paid over to plaintiff, or his heirs, devisees, legatees, or assigns. Considerable testimony was taken relative to property matters and attorney fees. Obviously, the question of alimony and attorney fees presents considerable difficulty for determination by this court. On the record before us, we cannot reach any other conclusion than that the provisions in the proposed decree for property settlement and in lieu of alimony were reasonable, under the circumstances of this case. However, we feel that defendant (cross appellant) should be allowed $1,500 for attorney fees in addition to the foregoing, and the decree may so provide.
A: decree may be entered granting plaintiff an absolute divorce, with provisions for property settlemént and in lieu of alimony, dower and other rights arising out of the marital relation, according to the proposed decree (exhibit 1-a) in the record. The decree may contain a provision for remanding to the circuit court for any necessary subsequent proceedings in relation to the trust. Defendant (cross appellant) may have $1,500 attorney fees. No other costs allowed.
Chandler, C. J., and North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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] |
North, J.
The bill of complaint herein was filed for the primary purpose of foreclosing a trust mortgage covering apartment property located in the city of Detroit. Plaintiff is the trustee under the mortgage and incident to the foreclosure asked for the appointment of a receiver, injunctive relief and determination of the amount of fees to be paid to the trustee for its services. The trust mortgage, given to secure payment of a $50,000 bond issue, was exe euted on November 1, 1926, by Edwin H. Stillman and wife, wbo then held fee title to the property. By warranty deed dated January 17,1928, the Stillmans conveyed the property to defendant William Prost, subject to the trust mortgage which the grantee assumed and agreed to pay. Prost continued to hold title to the property until March 19, 1938, at which time he conveyed title by quitclaim deed to defendant and appellant, Eugene J. Stephenson; and at the same time Stephenson became the holder of $4,100 of these bonds. Substituted service was obtained on defendants Stillman, but they were defaulted for nonappearance. Prost appeared and answered; and defendant and appellant Stephenson appeared, answered and filed a cross bill to which plaintiff made answer. After a full hearing in the circuit court a decree was entered granting the relief sought by plaintiff and dismissing Stephenson’s cross bill. He alone has appealed.
The record establishes the execution of the trust mortgage, the issuance of bonds and default in payments due thereunder at the time the bill of complaint was filed. There was due under the terms of the mortgage on October 1, 1940, $56,631.32. Notwithstanding the default, one of appellant’s contentions is that at the time the suit was started the Union Guardian Trust Company, plaintiff herein, was not in fact and in law the trustee and had no right to institute the foreclosure 'proceedings. The facts and circumstances which give rise to this contention on the part of appellant may be stated in substance as follows. The Union Trust Company, designated as trustee in the trust instrument, later changed its corporate name to' Union Guardian Trust Company. On March 23, 1933, the Michigan State banking commissioner appointed George H. Kirchner conservator of the trust company with power “to continue to exercise any and all fiduciary functions of said Union Guardian Trust Company.” In February, 1934, the attorney general and State banking commissioner, acting in behalf of depositors holding more than 75 per cent, of the deposits in the trust company, filed a petition in the circuit court of Wayne county for the reorganization and reopening-of the trust company. This proceeding was under Act No. 32, Pub. Acts 1933, as amended by Act No. 95, Pub. Acts 1933 (Comp. Laws Supp. 1940, § 12077-1 et seq., Stat. Ann. § 23.91 et seq.). Notice of hearing was by publication and posting only, as ordered by the court. Upon hearing, reorganization Was decreed and it was also adjudged that:
“The fiduciary business of the company shall be continued by the reorganized company, carrying with it any and all fees and/or compensation in the process of collection or to be collected. Funds in the hands of the conservator and known as ‘conservator’s trust funds’ shall follow the respective trusts and be administered by the reorganized company accordingly. ’ ’
On May 26,1934, the Union Guardian Trust Company was authorized to reopen. It did so and continued to áct as trustee under the trust instrument involved in this suit. Except as above noted, neither substituted nor personal service was obtained on the holders of bonds issued incident to the trust here involved either in the conservator’s proceedings or in the reorganization proceedings. But the statutory notice published and posted was sufficient. The holders of these bonds were not directly interested in the reorganization of the trust company. Their property rights were not thereby adjudicated. In any event the notice ran to the “depositors, creditors, and stockholders, and/or all other persons in any manner interested in the foregoing reorganiza tion.” The notice given complied with the provisions of the act under which the trust company was reorganized. Act No. 32, § 7, Pub. Acts 1933, as amended by Act No. 95, Pub. Acts 1933 (Comp. Laws Supp. 1940, § 12077-7, Stat. Ann. § 23.97). The bondholders have no cause to complain that there was lack of proper service.
Appellant contends that the proceedings above noted terminated the trustee’s right longer to administer this trust, and therefore it could not institute this foreclosure suit. In this connection Stephenson alleged in his answer the following: “That since March 23, 1933, said Union Guardian Trust Company has never engaged in business, nor had any capacity to act as a corporation and has gone into liquidation. By reason of the premises, said original trustee-mortgagee * * * has ceased and was disabled to act as mortgagee-trustee under the mortgage which plaintiff seeks to foreclose herein.” We think there is no merit to this contention; and in any event it cannot be successfully asserted by appellant. He had no interest whatever as an owner of the mortgaged property nor as- a bondholder until nearly four years after the Union Guardian Trust Company resumed business as reorganized. During that period defendant Prost owned the mortgaged premises; and it appears from the record that Prost acquiesced in the management of the trust by the trustee up to the time he disposed of the property in 1938; and as a witness in the trial of the case Prost expressed himself as entirely satisfied with the conduct of the business by the Union Guardian Trust Company.. Appellant as Prost’s grantee in the quitclaim deed or as the purchaser of bonds in 1938 with full knowledge of all the pertinent facts stands in the same position as Prost and is estopped from successfully maintaining the claim hereinbefore considered. Nor is appellant right in his contention that by reason of its reorganization the trustee ceased to function in the execution of this trust. Both in the conservator proceedings and in the reorganization proceedings continuance of the company’s trust activities was ordered. Further, the statute which controls the conservator proceedings and the reorganization provides:
“Sec. 5. * * * The commissioner of the banking department is empowered and shall have authority to permit said bank or trust company under his direction to continue to exercise the fiduciary functions, if any, of such bank or trust company until such time as a successor fiduciary shall have been regularly appointed and qualified. * * * If such trust is retained the commissioner may hold, exercise and perform all of the rights, powers, privileges, duties and obligations of said trustee and/or fiduciary.
“Sec. 9. Nothing in this act shall be construed to prevent any bank or trust company or the commissioner of the State banking department conducting the affairs of any such bank or trust company from conducting its business as agent or trustee in due course and receive and disburse funds in relation thereto when acting in that capacity.” Act No. 32, Pub. Acts 1933.
Reorganization did not interrupt or change the corporate entity of the trustee. Westveer v. Ter Keurst, 276 Mich. 277; In re Burger’s Estate, 276 Mich. 485.
Another ground or reason in consequence of which appellant asserts the trust company was not the trustee at the time this suit was started and was therefore without authority to institute this foreclosure proceeding necessitates a recital of the facts and circumstances about to be stated. This phase of the record also bears upon appellant’s con tention that since the trustee has acted in violation of its trust, it should he denied compensation for its services and held to indemnify the bondholders against loss.
On February 13, 1930, Mr. Prost, then the owner of the mortgaged property, executed and delivered to the Union Trust Company an agreement and power of attorney by which he authorized the trust company! to manage and operate the apartment building and to make payments out of the net proceeds received into the sinking fund established under the terms of the trust mortgage. For such managerial services the trust company charged and received 5 per cent, commission upon the income from the mortgaged property. The Union Guardian Trust Company continued its management of the mortgaged apartment property from February, 1930, until the bill of complaint herein was filed on March 24, 1938; and thereafter it continued in the possession and management of the property under orders of the trial court. The position taken by appellant is that the trust company, which in the first instance undertook to serve as a trustee primarily representing the interest of bondholders, by entering into the management contract with the owner of the property who stood in the position of the mortgagor, attempted to represent and serve antagonistic interests simultaneously, and thereby “disqualified, prohibited and estopped” itself from continuing to act as trustee. But in this connection it appears from an affidavit made by Stephenson in support of a motion to dismiss the bill of complaint “that before making such purchase [of the mortgaged property] he inquired of the plaintiff Union Guardian Trust Company whether it was operating the property described in the bill of complaint as agent for said William Prost * * * and was informed by the plaintiff that it was acting as such agent and in further confirmation of said representation the said plaintiff exhibited to this deponent accounts of its operations on said property and the rents it had collected; * * * and * * # when this deponent informed said plaintiff that deponent preferred to operate said premises himself, * * * said plaintiff sent one Walter Dillingham to interfere with the management of the said property by this deponent; and on March 23, 1938, after purchase of the said premises by this deponent, # * said Walter Dillingham * * '* excluded the deponent # * * from the said building, and informed deponent that he was there armed and directed by the plaintiff to retain the said building by force.” The bill of complaint was filed the next day (March 24, 1938) and, as noted above, plaintiff’s possession and management thereafter was under the. authority and protection of court orders.
In considering appellant’s complaint that the trustee by undertaking in February, 1930, to manage the mortgaged property and in thereafter doing so the trustee was guilty of a breach of its trust, it should be noted that this trust mortgage obligation had been in default since November 1,1931, and further that article 4, § 1, of the trust instrument provides :
“In addition to the other rights granted trustee upon any event of default occurring, it is specifically agreed that should default be made upon the part of said mortgagor in the making of the payments provided for in this indenture into the sinking fund at the time and in the manner prescribed herein, ■then the trustee shall immediately have the right to enter said premises and take immediate possession of the same, together with all the rents and income of every name and nature, and apply such income to the sinking fund provided for herein. * * * It is further specifically agreed on the part of said mortgagor that the trustee shall retain possession of the premises hereby demised, together with the rents and incomes thereof, when so taken as aforesaid, until the requirements of this indenture relative to sinking fund shall be fully complied with. ’ ’
Thus it appears that in continuing in possession and management of the property from November, 1931, to the date of starting this suit (March 24, 1938) the trustee was acting in accord with its right under the terms of the trust instrument, and it is a fair inference that if the trustee had not taken the course of action that it did the bondholders would have had just cause to complain. Appellant’s counsel stated to the trial court at the close of the proofs:
“I am not making a charge at this time of any fraud or mismanagement against the Hnion Guardian Trust Company because I have no facts upon which I can make such claim. However,. I do say this on the record, that the record in this case now shows beyond any question that they have violated their fiduciary duty in not proceeding with the foreclosure of the mortgage when it became in default; and that they have violated their duty because of the fact that their position was inconsistent because they were at the time acting as agent for the mortgagor.”
There should be no departure from the salutary holding of this Court that: “Loyalty to his trust is the first duty which the agent owes his principal. Without it, the perfect relation cannot exist.” McLennan v. Cole, 224 Mich. 225, 234. But there is nothing in the record in the instant case which would justify holding that by its noted course of conduct the trustee incapacitated itself to prosecute this foreclosure suit; nor did it thereby forfeit its right to reasonable compensation.
It is true that under its contract with the owner for management of the property plaintiff was paid 5 per cent, on the income, but the undisputed testimony is that this was the fair and usual charge for such service, and whether the trustee acted under the management contract with the owner or under the power conferred by the trust instrument, it would have been entitled to just compensation for its services as rendered.
Appellant urges that the trustee, in prolonging its management of the mortgaged property and in not starting 'foreclosure until more .than six years after default first occurred, has been derelict in the discharge of its duties. As holder of the fee to the mortgaged premises surely appellant has no ground for complaining in this particular. Nor has appellant established that either he or other bondholders, none of whom demanded foreclosure, have sustained any loss as a result of such delay. These bonds were not considered desirable under the conditions which prevailed in 1931 or 1932, when default first occurred. At that time they were sold at 15 cents on the dollar. The trust instrument contains no provision which requires the trustee to institute foreclosure proceedings in the event of default. Instead, the trust instrument provides:
“The trustee shall not be liable for the exercise of any discretion or power hereunder or mistakes or errors of judgment or otherwise in connection with this trust, except for its own wilful misconduct or gross negligence. * * *
‘ ‘ The trustee shall be under no obligation or duty to perform any act hereunder, or to institute or defend any suit in respect thereof, unless properly indemnified to its satisfaction.”
We cannot say from the record that by continuing its management of the mortgaged property and de ferring foreclosure until fináncial conditions were more favorable, the trustee has not exercised good judgment to the profit of the holders of these bonds.
Appellant further charges as conduct by the trustee in breach of its trust that the moneys collected by the trustee as income from the mortgaged property were commingled with the trustee’s own funds and used by the trustee. The only evidence of loss or damage resulting to bondholders therefrom is that funds from this trust to the extent of $1,862.81 were, at the time this case was heard in the circuit court, impounded with liquidating trustees of the Union Guardian Trust Company. We do not think it can be said that the trustee, incident to paying taxes, insurance, and making repairs in managing the mortgaged property, might not be justified in retaining in its hands funds in that amount. Under given conditions bondholders may have just cause to complain if a trustee mingles with its own funds moneys belonging to the trust. But in the instant case the trustee made regular periodical reports to bondholders. From such reports it appears the trustee was managing the mortgaged property under an agreement with the owner, that part of the funds were carried in a “property management account,” and that the trustee was accumulating and retaining funds as the result of its management of the property. Under its management contract with Mr. Prost the trust company was authorized to use funds thus obtained “to make payments in sinking fund as required by trust mortgage.” As to moneys in the sinking fund the trust instrument provided: “Said funds while so held by the trustee may be used by it for its own purposes in the same manner as a banker may use the moneys deposited by his customers.” There is no testimony that any bondholder demanded distribution by the trustee of ac cumulated funds prior to appellant’s demand that all of such funds be paid to him .as the owner of the fee to the mortgaged property in 1938. The trustee properly refused appellant’s demand because the funds were then held by the trustee as part of the sinking fund for the benefit of bondholders. The trustee’s conduct in the particular under consideration does not, under the circumstances of this case, furnish grounds for holding the trustee barred from continuing to act or for depriving it of just compensation for services rendered.
“In determining whether the trustee was guilty of negligence or violation of its trust duty, we must be governed by the circumstances of the particular case.” Lawrence v. First National Bank & Trust Co. of Kalamazoo, 266 Mich. 199, 205.
“If there is no mala fides, nothing wilful in the conduct of the trustee, the court will always favor him.” In re Grammel's Estate, 120 Mich. 487.
Early in its trusteeship plaintiff, as further security for the bondholders, obtained from Mr. Prost policies of insurance on his life aggregating $12,000. Some premiums on these policies were paid by Mr. Prost, but others were paid by the trustee under orders of the court. At the same time appellant demanded that the trustee turn- over to him the accumulated funds in its hands (March 22, 1938), he also demanded that the trustee obtain and turn over to him the cash surrender value of these policies. Clearly the trustee was justified in refusing this demand and in retaining in its trust capacity for the bondholders the additional security it had thus acquired.
We are not in accord with appellant’s contention that the testimony in this case is not sufficiently full and detailed to sustain the decree of the trial court in approving the trustee’s account as tendered or in fixing the compensation to which plaintiff trustee is entitled. The case was submitted to the court solely on the testimony offered in behalf of plaintiff. Defendants produced no witnesses nor did they offer any testimony in their behalf except such as was developed on cross-examination. This condition of the record was called to the attention of appellant’s counsel at the close of the proofs in the trial court. The trial judge stated: “As the record now stands I have to approve everything they have submitted, if I hold they are proper party plaintiff;” and the court thereupon inquired: “You desire to produce no further proofs?” to which counsel for appellant responded “No further testimony, your Honor.” It is true that the testimony as to the accounting was somewhat summary in its character; but since it was not challenged by competent testimony it was sufficient. Nor was there any testimony offered as against that in behalf of plaintiff bearing upon the proper allowance as compensation for trustee services rendered and attorney’s fees. The determination of the trial judge is sustained by the record and cannot be disturbed on this appeal.
The foregoing sufficiently covers the various contentions made in behalf of appellant with the exception of the claim made in his cross bill that he should be decreed damages for “forcible entry and continued trespasses.” We quote the charging part of the cross bill in full:
“This defendant charges that by force and arms the plaintiff took and excluded this defendant from possession of the premises described in the bill of complaint on or about March 23, 1938, of which this defendant is owner in fee simple and entitled to exclusive possession, and has ever since wholly excluded this defendant and cross plaintiff therefrom, by malicious abuse of the process of this court, and in defiance of its duty to account to this defendant and cross plaintiff as his agent, and thereby has obtained and appropriated to itself all the rents and profits of said premises, to the great damage of this defendant and cross plaintiff.”
From the facts hereinbefore stated it is apparent that this record does not sustain the charge that the plaintiff herein unlawfully withheld possession of the mortgaged premises from appellant for any appreciable time, if at all. There can be no question but that prior to March, 22,1938, when appellant first informed plaintiff of his alleged rights and demanded possession, that plaintiff was entitled to possession under its management contract with Mr. Prost. On the following day the trustee exercised its right under the trust instrument by giving and recording notice of default and taking over the rents and income of the mortgaged property. Appellant alleges in his cross bill it was on this same day that plaintiff forcibly “took and excluded this defendant from possession of the premises.” The next day, March 24, 1938, plaintiff filed the bill of complaint herein. Thereafter it continued in possession of the mortgaged premises by authority of and under the orders of the court. Appellant has not established the right to any relief under his cross bill.
The decree entered in the circuit court is affirmed with costs to appellee; and the case is remanded to the circuit court for further proceedings therein looking to the consummation of foreclosure.
Chandler, C. J., and Boyles, Starr, Wiest, Butzel, and Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
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North, J.
On trial by jury defendant was convicted under an information charging that she: ‘ ‘ did then and there knowingly accept, receive, levy and appropriate certain money, to wit, $3.50 in lawful money of the United States of America, without consideration, from the proceeds of the earnings of a certain woman engaged in prostitution, to wit: Elizabeth Chatfield,” in violation of section 457 of the 1931 Michigan penal code. See Act No. 328, § 457, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-457, Stat. Ann. § 28.712). Defendant’s appeal presents the questions herein considered.
Appellant asserts that three exhibits in her handwriting which clearly tended to establish the people’s case were illegally seized by police officers while in her place of residence, and that when these exhibits, or at least two of them, were offered in evidence by the people the trial judge committed prejudicial error in ruling that they were admissible notwithstanding defendant’s objectioii and motion to suppress. In this connection appellant contends that her constitutional rights were violated. See United States Constitution, Fourth Amendment, and Michigan Constitution (1908), art. 2, § 10.
The record does not sustain appellant’s contention that the exhibits received in evidence were obtained by an unlawful search or that they were “illegally seized from defendant’s home.” There is testimony to sustain the people’s theory that Elizabeth Chatfield was an inmate or occupant of defendant’s premises, and that she was there engaged in acts of prostitution with defendant’s knowledge and cooperation; that while in control of the premises Elizabeth Chatfield admitted two officers of the law; and while there they acquired information that she was engaged in prostitution. Thereupon she was arrested and incident to her arrest one of the officers discovered and took possession of the exhibits. They were evidence of the guilt of Elizabeth Chatfield and were retained as such by the officers. Under such circumstances these items of evidence were lawfully obtained and held by the officers. These documents or exhibits were also competent evidence that defendant was guilty of the charge made against her and for which she was arrested the next day after Elizabeth Chatfield was arrested. Since this evidence was lawfully obtained and possessed by the prosecution, the trial judge properly denied defendant’s motion to suppress and properly permitted receipt of the exhibits in -evidence. In People v. Cona, 180 Mich. 641, 652, we quoted with approval the following:
“The police have the power and it is also their duty to search the person of one lawfully arrested, and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which he is arrested.”
The remaining contention of appellant is that the trial court erred in not giving the following charge requested by defendant.
‘ ‘ That if two theories could be reasonably deduced from the evidence one leading to a conclusion of innocence and one to guilt, you should adopt the theory leading to innocence and find the defendant not guilty. That is, if from the evidence you could find that on the 11th day of September, 1940, the defendant, Ella Harris, received $3.50 in payment of clothes bought by Elizabeth Chatfield, then you must find the defendant not guilty.”
The trial judge was justified in not giving this request because as applied to the -record in this case it was erroneous, misleading and, if followed literally, would have improperly necessitated acquittal of defendant. If it had been given the court would have thereby instructed the jury that in event they found defendant received from Elizabeth Chatfield $3.50 on the 11th day of September, 1940, in payment of clothes bought by Elizabeth Chatfield, defendant should be found not guilty. There was no dispute in the evidence that Elizabeth Chatfield did make such a payment to defendant; but Elizabeth Chatfield also testified that in addition to this payment for clothes she paid without consideration on the date mentioned a like sum obtained by her as the proceeds of her prostitution.
Conceding that'the first sentence of the above-quoted request is a fair and applicable statement of law, it was not prejudicial error for the trial court, under the circumstances of this record, to decline to give it in the exact words of the request. It is only another method of directing the jury that an accused cannot be convicted if upon consideration of the testimony the jury still has a reasonable doubt of guilt. Of this phase of the law the jury in the instant case was plainly and repeatedly advised in the charge of the court. We are content to -quote in this particular a single statement from the charge of the court:
‘ ‘ The defendant, as I said, — you must he satisfied of her guilt beyond a reasonable doubt. A reasonable doubt means * * * such doubt that after a careful review of all the evidence you cannot say you have an abiding conviction to a moral certainty of the defendant’s guilt. If you have that kind of doubt, it is your solemn duty to resolve it in favor of the defendant and acquit her.”
Conviction and judgment are affirmed, and the case is remanded for execution of sentence.
Chandler, C. J., and Boyles, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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] |
Bushnell, J.
Relators, who claim to be bona fide holders for value of bonds issued by Royal Oak No. 7 storm sewer drain district in the township of Royal Oak, Oakland county, Michigan, seek a writ of mandamus directing and commanding respondents, the drain commissioner of Oakland county, and the board of supervisors of that county, to severally and collectively perform such acts as will result in the levy, certification, and spread of all unpaid portions of the instalments of taxes levied for this drain, and such supplemental or deficiency assessment as shall be sufficient to pay all outstanding bonds of the district. We issued an order to show cause and it was stipulated between the parties that the answer of the drain commissioner and the board of supervisors should stand as the return to that order.
The proceedings to establish this drainage district were instituted on June 3, 1927, under Act No. 316, Pub. Acts 1923, as amended by Acts Nos. 288, 365, Pub. Acts 1925, and Act No. 80, Pub. Acts 1927 (see 1 Comp. Laws 1929, § 4838 et seq. [Stat. Ann. § 11.1 et seq.]), which authorizes only the construe tion of drains. This act has since been amended (Act No. 318, Pub. Acts 1929, and others) and now includes provisions for the building of sewers and sewage facilities in connection with drains. The proceedings progressed in the usual manner and bonds in the par amount of $191,000 were issued. The entire issue was purchased by a brokerage house in the city of Detroit and payment therefor was made to the county treasurer. The bonds were resold to various investors and these relators now hold 150 bonds of the outstanding issue.
The construction was of an underground type, of vitrified, double-strength sewer crock, with catch basins for surface waters and Y’s for sanitary sewer connections to each residential lot, capable of caring for sanitary sewage and surface waters of the whole area of the district. The underground conduits range from 12 to 54 inches in diameter.
The bonds have been in default since May 1, 1931, due to the suspension of the 'levy of instalments of the assessment for this project during the years 1932 to 1936, inclusive. All bonds are now past due and interest has been in default since May 1, 1940. On December 12, 1940', relators entered into written agreement with the drain commissioner, board of auditors, and treasurer of the county, whereby 30 per cent, of the accrued interest was cancelled and refunding bonds were to be issued. Relators surrendered their interest coupons, consented to an indorsement on their bonds of a receipt for all interest to May 1, 1940, and were paid 70 per cent, of the accrued interest. Respondent drain commissioner then sought authority for the issuance of refunding bonds and, on February 13, 1941, the Michigan public debt commission signed an order authorizing such an issue. Relators were later informed by respondents that they would neither issue such re funding bonds nor levy any further taxes for the payment of existing bonds. The answer of respondents avers in substance that the refunding agreement, having been executed without the authority or approval of the board of supervisors, is void and of no force and effect, and that, because of the holding of this court in Village of Oak Park v. Van Wagoner, 271 Mich. 450, decided May 17, 1935, the bonds held by relators are void.
In the 12 briefs that have been filed in this cause by the parties and various amici curiae, to whom leave was granted, it is conceded that decision in this case affects not only the possibility of payment of the defaulted bonds of this issue but many millions of other outstanding drain bonds.
The issues presented may be summarized as follows :
1. Is the decision in Village of Oak Park v. Van Wagoner, supra, either res judicata or stare decisis¶
2. Are respondents estopped by the recitals in the bonds ?
3. May the validity of the drainage proceedings be attacked in a collateral suit?
• 4. Is Royal Oak No. 7 storm sewer drain a sewer or a drain?
5. Is mandamus the appropriate remedy?
Litigation regarding the validity of drainage projects has been determined by this court in various eases, among which are the following: Clinton v. Spencer, 250 Mich. 135; Warren Township v. Engelbrecht, 251 Mich. 608; Kinner v. Spencer, 257 Mich. 142; Township of Lake v. Millar, 257 Mich. 135; Hankins on v. Deake, 265 Mich. 1; Village of Clawson v. Van Wagoner, 268 Mich. 148; Village of Oak Park v. Van Wagoner, supra; Kennedy v. Dingman, 272 Mich. 24; Meyering Land Co. v. Spencer, 273 Mich. 703; Detroit Fire & Marine Ins. Co. v. Oakland County, 284 Mich. 130; Detroit Trust Co. v. Dingman, 291 Mich. 170.
In none of the above cases were bondholders actual parties, although respondents argue that bondholders were represented by the drain commissioner. Holders of bonds issued on projects covered by some of the foregoing cases have litigated their claims in the Federal courts. The most recent Federal decision is Bloomfield Village Drain District v. Keefe (C. C. A.), 119 Fed. (2d) 157. Other Federal cases are an unreported one before Judge Raymond in the Western District of Michigan and Royal Oak Drain District, Oakland County, Mich. v. Keefe (C. C. A.), 87 Fed. (2d) 786.
No useful purpose would be served in reviewing the cited cases, each of which has been reexamined as to its applicability to the issues presented. Careful consideration requires the conclusion that decision in the instant case is governed by the reasoning in Village of Oak Park v. Van Wagoner, supra. Although five members of the court concurred specially in the opinion in that case, nevertheless the court was unanimous in holding that the Royal Oak No. 7 project was a sewer and not a drain; that the defendant drain commissioner was wholly without jurisdiction in the premises, and that therefore the entire proceedings were void and subject to collateral attack. In arriving at this conclusion, the court unanimously concurred in the statement that, “The acts of the drain commissioner were without warrant in law, and any tax levied and collected as a result thereof would constitute the taking of property without due process of law.” We held unanimously that all assessments levied against the village should be cancelled and set aside and permanently restrained the drain commissioner from collecting, or attempting to collect, the same or any portion thereof.
The project was designated “Royal Oak No. 7 Storm Sewer Drain,” and the bonds bore the heading, “Royal Oak No. 7 Storm Sewer Drain District Bond.” It was recited in the bonds “that all acts, conditions and things required to be done, precedent to and in the issuance of this bond in order to make it a binding obligation of the Royal Oak No. 7 storm sewer drain district have been done * * * and for the prompt payment hereof * * * the full faith, credit and resources of said drain district are hereby irrevocably pledged.” The underground conduits are all of the same size and character as when they were laid and are serving the same purpose for which they were laid. If the levy of a tax in 1935 “would constitute the tailing of property without due process of law,” the levying of a tax now would also constitute the taking of property without due process of law.
We do not say that the Village of Oak Park Case, supra, is res judicata of the rights of these relator bondholders; nor do we hold that they had their day in court through representation by the drain commissioner who was the defendant in that action. We do say, however, that the rule of stare decisis should be applied even though equitable considerations might prompt a different result. Detroit Trust Co. v. Detroit City Service Co., 262 Mich. 14, 35. See, also, People v. Droste, 160 Mich. 66, 75, and Colborne v. Detroit United Railway, 177 Mich. 139, 142. Since we held in 1935 that it was illegal to levy and collect any tax assessed as a result of this project, under the doctrine of stare decisis we must hold now that it is illegal to levy and collect a tax to pay outstanding bonds issued incident to the same project.
It is urged that respondents are estopped by the recitals in the bonds to deny their validity. Generally speaking, a municipal corporation cannot be estopped by the unauthorized and illegal acts of its officers. Certainly the board of supervisors of Oakland county cannot be estopped by the drain commissioner of that county because he had no legal authority whatever to speak for them and the counter signature of the county clerk was merely a ministerial act.
Is the drain district estopped by the recitals of the drain commissioner? Among the authorities cited in support of relators’ contention, the case of Thompson v. Village of Mecosta, 127 Mich. 522, is typical. In that case the village of Mecosta had authority to issue public improvement bonds and, so far as the bonds issued were concerned, they were perfectly good on their face.' There was nothing to challenge the attention of the purchaser, such as the title of the proceedings and the heading of the bonds in the instant case. They were designated only as public improvement bonds of the village. The bonds were, however, “delivered to the Hutchinson Manufacturing Company of Jackson, Mich., as a bonus or aid to parties erecting a gristmill,” a purpose for which the village wholly lacked authority to issue bonds, namely, a private improvement. The bonds upon their face “unquestionably carried a false pretense. ’ ’ This court held that — ‘ ‘ a bona fide purchaser for value had a right to rely upon the statement of the board, appearing in the bond, that it was issued to borrow money under this act, for lawful purposes; i.e., public improvements. ’ ’ Citing authorities.
Judgment, however, for plaintiff was reversed and a new trial ordered because of the absence of proof of bona fides.
In the instant case there is no showing, and can be no showing, of false pretense. Bach obligation now in question bore the title, “Royal Oak No. 7 Storm Sewer Drain District Bond.” The drain commissioner had no authority to build a sewer drain. He was wholly without jurisdiction and his void acts cannot estop the drain district, even though it can be argued that the taxpayers of the drain district have profited by his unauthorized acts.
Since relators do not present a case warranting the relief asked for, we need not pass upon the propriety of mandamus as a remedy in this action.
The writ of mandamus is denied. A public question being involved, no costs will be allowed.
Chandler, C. J., and Boyles, North, Starr, Wiest,.Butzel, and Sharpe, JJ., concurred. | [
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] |
Bushnell, J.
Plaintiff Charles A. Baker sought to recover damages because of the death of his wife in an automobile accident which occurred during the early morning of November 14,1939, on US-41, near Stephenson, Michigan. Defendant James Costello, while driving his car in a southerly direction, collided with a truck which was parked on the shoulder of the highway with perhaps an inch or two of its body overhanging the pavement. Plaintiff’s wife and defendant’s wife, who were riding in Costello’s car, were killed in the collision.
The allegations of plaintiff’s declaration are confined to a charge of ordinary negligence. It is specifically averred in the declaration that plaintiff’s wife “was not then and there a guest of the said defendant James Costello.” Defendant in his answer denied “that the said wife of the plaintiff was not then and there a guest of the said defendant,” et cetera, and specifically averred that “said wife of plaintiff was then and there being transported by the owner and operator of said motor vehicle as his guest without payment for such transportation. ’ ’
Evidence was produced by plaintiff in support of certain allegations of the declaration, but no proofs were tendered in support of the negative averment that the decedent “was not then and there a guest of the said defendant;” nor was any attempt made to prove that the accident was caused by “the gross negligence or wilful and wanton misconduct” of Costello. Defendant, having moved for a directed verdict at the close of plaintiff’s opening statement, did not thereafter offer or produce any proofs.
At the close of plaintiff’s case the court directed a verdict in favor of the defendant and made the following explanation to the jury:
“The plaintiff does not seek to recover under that statute (guest act), but seeks to recover under the rule of ordinary negligence. But he offers no evidence to show what the relations of the parties were, so he leaves the court and the jury right in the air, and we cannot speculate. The natural inference would be from the relation such as has been described this morning, and as admitted in the pleadings, that this lady was riding as a guest. Therefore, under the pleadings here and under the evidence there could be no recovery.
“Now it is the duty of the plaintiff, if he seeks to recover under .the claim that the lady was not a guest, to show what her relation was, and there is no such showing here. So the evidence is entirely too chimerical and too speculative to warrant any verdict at your hands for the plaintiff, and your verdict must be for the defendant, for the plaintiff has not established a case within the law. ’ ’
The controlling question presented by this appeal is stated by the parties as follows:
“Is the burden on plaintiff to prove that the relation of his deceased wife to defendant driver of the automobile who caused her death was not that of host-guest?”
The statute to which the trial judge referred is 2 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446). It contains a proviso commonly known as the “guest act,” which reads as follows:
“That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought. ’ ’
The question of who has the burden of proof of a negative averment has been the perplexing source of many decisions. We have no desire to add to the complexity of the authorities by extended discussion of the question.
The phraseology of the statutory proviso is significant. Had the legislature intended that the burden of proof of the guest relationship be upon the defendant, it would not have said that “no person * * # shall have a cause of action * * * in case of accident,” et cetera. The language of the statute indicates that the legislature intended that a plaintiff who relies upon a charge of ordinary negligence must show that the host-guest relationship did not exist in order to have a cause of action. Where the probability of the host-guest relationship appears on the face of the declaration, or is indicated by the circumstances, a cause'of action based on ordinary negligence is not stated unless such relationship is denied. The general rule is that the burden of proof lies on the party who “makes the averment even though it be a negative one.” Reynolds’ Trial Evidence and Cross Examination (Pocket Ed.), p. 166. This rule is followed in this jurisdiction with respect to the negative averment of freedom from contributory negligence.
The burden of proof in this case was upon the plaintiff. He failed to maintain that burden and the trial judge properly directed the jury to bring in a verdict for the defendant.
The judgment entered upon the directed verdict is affirmed, with costs to appellee.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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] |
Chandler, C. J.
On November 18, 1936, defendant, United Benefit Life Insurance Co., issued its policy No. C-157567 insuring the life of William B. Fowler for the benefit of his wife, Mable Fowler, plaintiff and appellant herein. The amount of life insurance purchased by this contract was $2,500, and the policy provided for the payment of quarterly premiums by the insured to the company of $28.18 on February 18th, May 18th, August 18th and November 18th of each year.
The premiums on this policy were paid to February 18, 1939, but the premium due on February 18, 1939, was never paid. There was a grace period on this policy of 31 days and this expired on March 20, 1939.
On March 20,1939, the insured paid to one Earl B. Brink, local agent for defendant, the sum of $12.18 for the purpose of continuing said policy in force until April 2, 1939, and executed the following so-called “premium extension agreement:”
“First — That if said interest and premium be not paid on said date [April 2,1939] said policy shall be forfeited and void except as otherwise provided by its terms.
“Second — That no portion of said premium has been paid and that the remittance herewith made you shall be held by you until the end of the extension period to be then subject to my order if I have then paid said premium in full, but to be retained by you in the event of my failure to do so.
(Signed) William B. Fowler.”
April 2, 1939, fell on a Sunday. On April 3, 1939, the insured paid to said Earl B. Brink, defendant’s agent, $5.15 and received a conditional receipt in words and figures as follows:
‘ ‘ Policy No. C-157567. Premium Received $5.15.
Date Paid 4/3/39
1 ‘ This is an acknowledgment to W. B. Fowler that I have on this date received premium in the.amount above written, on this policy. Inasmuch as I have not been furnished with official receipt for this premium, this receipt is conditional, and the premium is - subject to acceptance at the home office of the United Benefit Life Insurance Company, Omaha, Nebr.
E'. B. Brink, M.E.,
Agent.”
After the receipt of the extension agreement under date of March 20, 1939, referred to above, the defendant wrote to the insured the following letter:
“Mr. Wm, B. Fowler,
Detroit, Mich.
“The agreement extending the time for payment of the premium due February 18, 1939, on your policy C-157567 will expire April 2, 1939.
“In accordance with your agreement and to keep your insurance in continuous good standing, please be sure your remittance is made on or before April 2, 1939. Also enclose this notice with your remittance to the company and notify us if your address is not correct.
Premium ■ $42.18
Interest .15
Total' $42.33
Less deposit 12.18
Amount due $30.15
Counsel for appellant makes no claim that the sum of $5.15 paid to defendant’s agent by the insured on April 3, 1939, was accepted by the home office of defendant prior to the death of the insured, which oc curred on April 9, 1939, and admits that said sum was returned by defendant.
The policy in suit contained the following provisions relative to the payment of premiums, grace in payment of premiums, and reinstatement:
“Payment of premiums — All premiums or instalments thereof are due and payable in advance at the home office of the company in the city of Omaha, Nebraska, or to a designated agent on or before date due, but in any case, only in exchange for the company’s receipt therefor, signed by the president, secretary or treasurer of the company and countersigned by such agent. Upon default in payment of any premium, this policy shall be null and void and all premiums forfeited to the company, except as herein provided. Premiums may be paid in advance in semi-annual or quarterly instalments at the company’s rates therefor. The payment of any premium or instalment thereof shall not maintain the policy in force beyond the date when the next premium or instalment thereof is payable, except as provided herein.
“Grace in payment of premiums — A grace of 31 days (without interest) will be granted for the payment of every premium or instalment thereof after the first premium or instalment thereof during which time this policy shall remain in force. ■
“Reinstatement — At any time after any default in premium payment, upon written application by the insured and presentation at the home office of evidence of insurability satisfactory to the company, this policy, unless previously surrendered for its cash value, may be reinstated upon the payment of arrears of premiums with compound interest thereon at the rate of six per cent, per annum, and the payment or reinstatement of any indebtedness to the company existing at the date of such default with interest from that date.”
Said policy also contained the following provisions relative to policy contract and to loans:
“Policy contract — This policy and the application therefor, taken together, constitute the entire contract between the parties hereto. No change or modification may be made, nor shall any forfeiture be waived or the date of payment of any premium be changed, except by consent of the company duly recorded by written indorsement hereon over the signature of its president or secretary; and the company shall not be bound by any promise ór representation affecting this contract made at any time by any person other than the above mentioned officers of the company. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties and no such statement made by the insured shall avoid this policy unless it is contained in the written application therefor, copy of which is attached hereto.
“Cash loans — After three full years’ premiums have been paid, the company, at any time while this policy is in force, provided no premium be in default more than 31 days, will loan to the insured within 60 days from the date of written application for such loan, on the execution of a proper loan agreement and on proper assignment of this policy, and on the sole security hereof, any sum not exceeding the amount stated in the table of guaranteed values for the end of the current policy year. From such loan value there will be deducted any existing indebtedness to the company on account of or secured by this policy and any unpaid balance of the premium for the current policy year. Interest in advance at the rate of six per cent, per annum will be collected on the loan to the end of the current policy year. Interest on the loan at the same rate will be due and payable annually in advance thereafter, and if not so paid, will be added to the principal and bear the same rate of interest.' Failure to repay any such loan, or to pay interest thereon when due, shall not void the policy unless the total indebtedness to the company on the policy shall equal or exceed the loan value of the policy at the time of such failure, in which case the policy shall immediately cease and become void 31 days after notice shall have been mailed by the company to the last known address of the insured and of the assignee of record at the home office, if any.”
It further appears from the record that upon the same date that the policy in suit was issued, the insured had issued to him a health and accident insurance policy No. TP5SF-7470, which was issued by the Mutual Benefit Health & Accident Association, on which the annual premium was $56 and the quarterly premium $14.
Mr. Brink, above referred to,, represented both of these companies and delivered the two policies in one envelope or jacket, which clearly set forth the names of the two companies, the numbers of the policies and the premiums to be paid on each policy, and inasmuch as the policies bore the same date, the premiums were made payable on identical dates, and the premiums in both instances were paid at the same time to the same agent. However, though it fairly appears that the two companies were officered by the same individuals, they were two separate corporate entities, engaged in different businesses and in the making of different and separate contracts.
It further appears from the record that the defendant on March 28,1930, had issued to the insured its life insurance policy, number 28691, for $2,000 on which the insured had paid his premiums up to the time of his death, and that he had obtained upon said policy certain loans, and that upon the death of the insured the amount of insurance due under the terms of the said policy, less the amount of the loans obtained by tbe insured, was paid to tbe beneficiary, tbe plaintiff in the instant case.
We do not consider either the health and accident policy, or the last described life policy, material to the issues in this case, but deem it advisable to make the foregoing statement relative to said policies, and the terms thereof, because of certain claims made by the appellant, both in the court below and upon this appeal. The provision relative to cash loans is the same as in the policy in suit.
The original declaration in this case contained two counts, one being upon the policy in suit, No. C-157567, in which it is alleged that said policy was in force at the time of the death of the insured. Count two was upon the common counts, but it clearly appears that recovery was sought under said count on the policy referred to in count one of the declaration.
The plaintiff demanded a trial by jury and the case came before Judge Vincent M. Brennan for trial on October 15, 1940.
At that time the court made the following request of counsel for plaintiff:
“The Court: Mr. Dohrman, I would like to have you make a preliminary opening statement in the absence of the jury so you may acquaint me with the plaintiff’s theory. Then when you have finished, I will have opposing counsel make a similar statement, and if there are any questions which should be determined before the jury is brought in, we will undertake to determine them. Just tell me the general nature of this lawsuit, how much you are suing for, and so forth. I have read the declaration. Then I will have some idea of the nature of the controversy.”
It appeared from the statement made by counsel in response to this request by the court that the plaintiff was insisting that the payment of $5.15 made on the 3d day of April, 1939, continued the policy in question in force until a date subsequent to the death of the insured. In the alternative plaintiff claimed that the health and accident policy above referred to was a void policy and that the moneys that the insured had paid in premiums had been unlawfully exacted from the insured by the company, that the two companies, the life insurance company and the health and accident company, were companion companies, were in effect one and the same, and that the moneys that the insured had paid for premiums on the health and accident policy to Mr. Brink, the agent for the two companies, should have been credited upon the valid policy, namely the life insurance policy.
Plaintiff made the further claim in the alternative, namely, that the life insurance policy, which had been in force since 1930, had, at the time of the claimed forfeiture of the policy in suit, a cash surrender value of several hundred dollars, and that it was the duty of the defendant to prevent a f oref eiture of the latter policy by applying sufficient of said funds to the payment of premiums on the policy in suit to prevent forfeiture.
After the plaintiff had made the statement of his claims as above outlined, the court determined that plaintiff’s declaration was not sufficient to permit testimony of plaintiff’s claims on the last two theories, and adjourned the case, over the objection of defendant, to give counsel for plaintiff an opportunity to file an amended declaration.
Plaintiff filed an amended declaration incorporating therein the theories he had outlined, and above set forth, and the case again came on for trial on November 26, 1940. At that time the attorney for defendant moved to strike from plaintiff’s amended declaration the paragraphs relating to the alleged illegality of the sale of the health and accident policy by the Mutual Benefit Health & Accident Association, which motion was granted by the court as it should have been. See Gledhill v. Fisher & Co., 272 Mich. 353 (102 A. L. R, 1042).
The trial court then stated:
“Now that brings us to the second point regarding what efficacy, if any, the payment of $5.15 had on April 3, 1939. This receipt entitled 'a receipt for premium, expressly states that the $5.15 is subject to the acceptance of the home office. Counsel for the plaintiff advises me that he is not in position to prove that this payment was accepted by the home office prior to the death of the insured. As a matter of fact, it apparently is conceded that it was never accepted by the home office. It is my view that that being so, plaintiff may not maintain a theory based upon this payment of $5.15. That, therefore, eliminates two of the possible theories upon which the plaintiff proceeds.
“Now, I would like to have Mr. Dohrman state what remaining theory there is in the case upon which the plaintiff hopes to prevail. I would like to have Mr. Dohrman make an opening statement as to what he hopes to prove. Of course, if there is no legal basis for it, I will have to dismiss the case. If he has a legal basis for a case, in my opinion, then he can restate it after the jury comes in.”
Counsel for plaintiff then contended that plaintiff was prepared to show that the cost of the life insurance policy in suit to the defendant was approximately $58 per annum and that the defendant by exacting and receiving quarterly annual premiums of $28.18 for upwards of two years had built up in unearned premiums a fund which the insured could have demanded on cancellation of the policy, and which represented a figure greatly in excess of the amount that was owing by the insured for premiums on the policy in snit. Furthermore, that the other life insurance policy which the insured had with defendant had a cash value in unearned premiums greatly in excess of the amount of the premium due on the policy in suit, and that it was the duty of the insurer to keep in force such policy and thus prevent a forfeiture by applying on the premiums on this policy some of the unearned premiums on the other life insurance policy. The trial court very properly held that plaintiff was not entitled to maintain an action against the defendant based on either of said three theories.
The defendant, after plaintiff’s statements as above outlined, moved for a dismissal of the suit with prejudice, for the reason that plaintiff’s declaration as supplemented by the opening statement of her counsel, and the declarations and admissions made therein, did not set forth any facts which Would justify the maintenance of a cause of action against the defendant. The trial court granted defendant’s motion and it is from this determination that plaintiff appeals.
Plaintiff’s statement of questions involved, though not numerous, are somewhat involved, but her counsel in his brief has, we think, fairly and concisely stated his contention in the following language: “The verdict of dismissal should have rested upon the evidence or want of evidence and not upon the opening statement of counsel.”
In effect it is the contention of plaintiff that even if she had no cause of action, that the act of the trial judge in the dismissal of the case was premature, and that said court should have permitted the impaneling of a jury, let appellant make her opening statement and then entertained defendant’s motion to dismiss. This we will concede, as contended by plaintiff, has been the usual practice. However, many unusual things are done in the trial of cases, hut this does not necessarily mean that such unusual procedure is not correct.
In the case of Purkyn v. Ford, 206 Mich. 576, the trial court by the interrogation of counsel ascertained that no facts were in dispute, and that under the facts as conceded by plaintiff’s counsel, the plaintiff was not entitled to maintain an action and directed a verdict for defendant. The plaintiff in that case on appeal made similar contentions to those of the plaintiff in the instant suit. This court said at page 581:
“The trial court interrogated counsel to some extent as to the identity of the causes of action, and this was done for the purpose of shortening the trial and avoiding a long record. The trial court is to be commended for his effort in that direction. We are of the opinion that the verdict was properly directed.”
In the instant ease after an extended, colloquy between court and counsel, it was made to appear to the trial court, and from, the record it is clearly apparent to this court, that if the plaintiff’s contention there was sustained in every particular by the evidence, that the plaintiff was not entitled to a recovery, and under such circumstances we are inclined to repeat what we said in Parkyn v. Ford, supra, that “the trial court is to be commended for his effort” to save time and expense by entertaining defendant’s motion to dismiss, based on the statements of counsel for plaintiff, and in the dismissal of said cause.
The desire of the trial court, as appears from the record, to give to counsel for plaintiff every opportunity to state a set of facts which would justify the submission of the case to a jury is indicated by the following statement of the court:
“I have every sympathy for the lady. I would like to see her get her insurance, and I think it very unfortunate. If there is any possible theory upon which the case could be submitted to the jury, I would certainly want to do it, but there is no use wasting the time of the court chasing rainbows or trying to evolve interesting theories which have no foundation in law. ’ ’
In Cyrowski v. Wojcik, 280 Mich. 476, we held that a motion to dismiss in the nature of a demurrer can be used to try the merits and issues of fact where counsel makes admissions in the record at the time of the hearing on the motion to dismiss. In the instant case appellant, in addition to her declaration, was given an opportunity to explain and amplify her case to the court in a manner similar to an opening statement. The facts were conceded by defendant. Appellant attempted to draw legal conclusions from the facts which the court determined were without merit. Even thus, in the instant case, the declaration as amplified and supplemented by the statement of plaintiff’s counsel did not set forth a legally sustainable cause of action.
Plaintiff’s counsel conceded that the premiums on the policy in suit had not been paid for a 3-year period. We must, therefore, hold that under the terms of the policy, as hereinbefore outlined, it had no cash or surrender value, and the failure to pay premiums in accordance with the terms of the policy contract worked a forfeiture thereof unless there was such an extension of the time for the payment of said premiums as would justify a finding that the policy was in force and effect at the time of the death of the insured. These parties made their own extension agreement as hereinbefore set forth and, unless we are to reform or make a new contract for them, we must hold that this policy was not in effect at the time of the death of the insured. See Johnson v. National Life & Accident Ins. Co., 257 Mich. 335, where this court said:
“There is no question but that the policies had 'lapsed for nonpayment of premiums. There is no question but that no application for reinstatement of the insurance was subsequently made.. Under such circumstances, the policies provide they are to lapse, be canceled, and become void. This is the contract. We cannot reform it or malee a new contract for the parties. A lapsed policy, one that is forfeited, is no longer in force. The contract relations between the policy holder and the insurer cease when the policy lapses. No recovery can be had upon a policy where no contractual relation exists.”
The contention of the plaintiff that the payments made on the health and accident policy in another company should have been applied upon the policy in suit because said health and accident policy was void has no merit. It was plaintiff’s contention that the health and accident company had failed to comply with the provisions of the statute in that the form of said policy had not been filed and approved by the insurance department of the State of Michigan. Accepting plaintiff’s statement as true that the policy had not been filed and approved by the insurance commissioner there was still a valid contract between that company and the insured under the provisions of 3 Comp. Laws 1929, § 12447 (Stat. Ann. § 24.283), which provides:
“A policy issued in violation of this chapter shall be_ held valid but shall be construed as provided in this chapter and when any provision in such policy is in conflict with any provision of this chapter the rights, duties and obligations of the insurer, the policyholder and the beneficiary shall be governed by the provisions of this chapter.”
The contention of appellant that the defendant had the right, and that it was its duty, to debit the 1930 policy of the insured with the amount due from the insured in premiums on the policy in suit is without merit. To repeat this contention shows its speciousness. A reference to the loan provisions of both the policy in suit and the former policy shows the fallaciousness of this argument. This can also be said of the further contention of the plaintiff that the insured was entitled to be credited with the difference between the contended cost of the policy in suit to defendant, and the amount of premiums paid by the insured.
The provisions of the policy in suit are free from ambiguity. There is nothing ambiguous about the premium extension agreement hereinbefore quoted and signed by the insured. Nothing ambiguous about the letter from the insurer to the insured extending time for the payment of the premium due February 18, 1939, and advising the insured that the time for the payment of the balance of said premium expired April 2,1939. Neither is there any ambiguity in the receipt given by the local agent of the insurer to the insured for the amount paid by the insured on April 3,1939, and if this court is to follow its former decisions, that in the absence of fraud the insurer and insured can provide stipulations in their contracts not inconsistent with the statutes of this State and that such stipulations are enforceable, we must hold here that the policy in suit had been forfeited before the death of the insured for nonpayment of premium and that plaintiff cannot recover. See Johnson v. National Life & Accident Ins. Co., supra; Wells v. Prudential Insurance Co., 239 Mich. 92; Bowen v. Prudential Insurance Co., 178 Mich. 63 (51 L. R. A. [N. S.] 587); Kapralian v. Central Life Ins. Co., 276 Mich. 85.
We hold as a matter of law that appellant’s declaration, as amplified and supplemented by the remarks of counsel for plaintiff in the nature of an opening statement, did not present any questions of fact for a jury to ponder, nor did it state a legal cause of action, and the judgment of the trial court is affirmed.
Defendant will recover costs.
Boyles, North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Sharpe, J.
This is a suit for specific performance of an oral contract to convey real estate and personal property and for other relief by way of injunction.
Prior to 1933, plaintiffs had been residents of Berrien county, Michigan. While living in Michigan, plaintiff Frank Guzorek had some farming experience, although his main trade or occupation was that of a machinist. In 1933, plaintiffs moved to Chicago where Frank Guzorek was employed at his trade as machinist earning an average wage of $25 per week. His wife, Lucile, was employed as a waitress from which her income amounted to approximately $18 per week. Plaintiff Lucile Guzorek became acquainted with defendant when she was a little girl and frequently visited the home of defendant and his wife. Frank Guzorek became acquainted with defendant and wife shortly after he married Lucile. A friendship sprang up between the parties which continued until 1938.
Defendant is 78 years of age and his wife was 74 when she died in 1938. They were childless and had no near relatives. They resided near the village of Sodus. Sometime during the year 1933, conversations were had between the parties whereby the defendant and wife expressed their desire to have plaintiffs come to Michigan and live near them and care for them during the remainder of their lives. Defendant and wife offered to purchase a farm for plaintiffs on which they could take up their residence with their children. These negotiations were carried on by personal meetings and correspondence and continued until 1935.
Plaintiffs claim they were to leave their employment and home in Chicago and establish their residence in Michigan on a farm of 15 acres near the home of defendant and wife. They were to give defendant and wife their companionship and help them in ease of need at any time; and in consideration for such services, plaintiffs were to have all of Mr. and Mrs. Williams’s property upon their death.
Pursuant to such agreement, plaintiffs came to Michigan and established themselves on the 15-aere farm near defendant. The land was in poor condition and needed considerable attention before it would hear crops. The change of residence took place in October, 1935. Plaintiff Prank Guzorek started to work the farm after his hours of employment in a machine shop in Benton Harbor. He also hired some help to till the farm. He gave defendant $60 to pay certain taxes and, at defendant’s request, he gave defendant one third of the income from the farm.
Plaintiff Lucile Guzorek helped Mrs. Williams with the housework until about March 11. 1938, when Mrs. Williams was taken ill and confined to her bed. From that day until November 16, 1938, plaintiff Lucile Guzorek spent all of her time at the Williams home nursing Mrs. Williams until her death on April 4, 1938, as well as doing all of the housework. Shortly after the death of Mrs. Williams, defendant commenced a course of conduct and made advances of such a nature that plaintiff Lucile was compelled to resist him and, upon her refusal to accede to his demands, defendant threatened her with a gun. On or about October 31,1938, plaintiffs received a letter from defendant to vacate the 15-acre farm occupied by them.
In 1935, defendant and wife executed a deed of the 15-acre tract of land, naming plaintiffs as grantees. This deed was never delivered. It was placed in an envelope on which the following inscription appears:
“The contents of this envelope are the property of Frank Guzorek and Lucile Guzorek, of the township of Sodus, Berrien county, Michigan, and upon the death of the survivor of Willard M. Williams and Amanda B. Williams, shall be delivered over to the said Frank Guzorek and Lucile Guzorek.”
The deed was shown to plaintiffs and plaintiffs were informed that the deed was executed pursuant to the agreement. The deed was kept by Mr. Williams.
It is the claim of defendant that plaintiffs were tenants, paying rental. It is also the claim of defendant that if an agreement was made, plaintiffs did not perform all of the terms of the agreement.
The trial court made the following finding of facts:
“In my opinion, this correspondence clearly and definitely establishes that Mr. and Mrs. Williams did not have in mind the mere purchase of a poor 15-acre farm for the purpose of renting it to a tenant for one third of the crops. They were interested in having people whom they had known for years and in whom they had sufficient interest that they were willing to can fruit, make over old clothes, select a stove, drive out bedbugs, fix the well and build a barn, to live near them. * * *
“The preponderance of the evidence fairly establishes that there was an agreement between plaintiffs and Mr. and Mrs. Williams, that, if plaintiffs would abandon their Chicago employment and move upon this farm and be companions and' render care and assistance to them in their old age, when and as their condition required, Mr. and Mrs. Williams would purchase the farm, let them occupy it and use it during their lifetime, give them ownership but so place the title that plaintiffs could not encumber or convey it before, but would get record title upon the death of both Mr. and Mrs. Williams. * * *
“There can be no serious question but that the plaintiffs furnished the companionship and care required and expected of them so long as Mrs. Williams lived; and it is clear that there were no differences or contentions between them so long as Mrs. Williams lived.
“It is equally clear that for some period after her-death, Mrs. Gfuzorek still remained in the household and took care of the house and prepared the meals for Mr. Williams, though there is more or less conflict in the evidence as to the extent of the services thus rendered. * * *
“I am of the opinion that his (Mr. Williams) conduct was of such a character as to render it practically impossible for plaintiffs to continue to furnish the companionship and the services originally contemplated.
“I also find that plaintiffs were ready and willing to perform under appropriate conditions. * # *
“I am of the opinion, and so find, that the agreement included an undertaking on the part of Mr. and Mrs. Williams that whatever other property they, or the survivor, "held at death of the survivor should then become the property of plaintiffs. * * *
‘ ‘I also am of the opinion, and hold, that there was an agreement whereby plaintiffs were to be entitled to the use and occupancy of the farm during the lifetime of Mr. and Mrs. Williams and the survivor of them and that title to that farm was equitably to vest in plaintiffs forthwith but that evidence of the passing of the title, viz: the deed, was to be physically so preserved as to render it impossible for them to transfer or encumber the same during the lifetime of the survivor, to the end and for the purpose of thus insuring performance by the plaintiffs of their part of the agreement.”
At the close of the hearing, the trial court entered a decree giving to plaintiffs the 15-acre farm subject to the lien of any unpaid taxes; and ordered that on the death of defendant, plaintiffs are to become the owners of all property, both real and personal, now owned and then belonging to defendant, subject to all debts now owing by defendant or hereafter incurred for his support and maintenance as well as the expense of his last illness and death; and that during his lifetime, defendant is to have the enjoyment of his home. The decree also provided for an injunction against defendant enjoining him from disposing of any of his property except for the reasonable cost of his personal maintenance.
Defendant appeals. In our opinion the finding of the trial court as to the making of the agreement between the parties and the reason for its nonfulfillment is amply supported by the record in this case. Oral agreements to convey property in consideration of services to be rendered are within the application of the statute of frauds (3 Comp. Laws 1929, § 13413 [Stat. Ann. § 26.908]). However, equity will grant specific performance of such contracts in the proper instances. If one party to an oral contract, in reliance upon the contract, has performed his obligation thereunder so that it would he a fraud upon him, to allow the other party to repudiate the contract, by interposing the statute, equity will regard the contract as removed from the operation of the statute. See Lyle v. Munson, 213 Mich. 250; Sage v. Sage, 230 Mich. 477; Woods v. Johnson, 266 Mich. 172; Policha v. Foss, 292 Mich. 494. The contract to be enforced must he established by clear and convincing evidence. See Van Houten v. Vorce, 259 Mich. 545.
In Furgason v. Bunn, 292 Mich. 115, plaintiff and wife made an agreement with defendant whereby plaintiff and wife were to give up farming and make a home for defendant in a house to he purchased by defendant, who agreed that he would leave the home to them at his death. The house was purchased and the parties lived together for 12 years when plaintiff’s wife died. Thereafter, defendant notified plaintiff to vacate the premises. Defendant began proceedings to obtain exclusive possession of the house. Plaintiff then filed a hill for specific performance of the oral agreement to leave the home to plaintiff at defendant’s death. We ordered a decree enjoining defendant from selling, assigning, mortgaging or otherwise disposing of the lands and premises. The above case is authority for the decree entered by the trial court in the case at bar.
The decree is affirmed, with costs to plaintiffs.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Bushnell, JJ., concurred. Wiest, J., did not sit. | [
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Boyles, J.
Defendant, a practicing physician, appeals from a conviction and sentence for manslaughter by abortion. (Act No. 328, chap. 3, § 14, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 17115-14, Stat. Ann. §28.204]). The only question raised is as to the admissibility of an alleged dying declaration or, more specifically, whether there was sufficient evidence to submit to the jury the question of the belief of the deceased declarant in the imminence of death.
The record establishes that during the latter part of November, 1940, a Mr. and Mrs. Hunt, residents of Lansing, went to see defendant in Portland and made arrangements for him to procure a miscarriage; that an appointment was made and at the appointed time, Monday, December 2, 1940, Mr. and Mrs. Hunt and her married sister went to the doctor’s office in Portland. After all other patients had left, Mrs. Hunt was taken into an operating room adjoining the room where Mr. Hunt and the sister remained seated but in their hearing. The unpleasant details of the operation were brought out at length in the testimony of Mr. Hunt and his wife’s sister. Later, the same evening, Mrs. Hunt returned to the home of her sister in Lansing, went to bed, and, on Wednesday, two days later, a miscarriage occurred. The patient grew worse and, on Friday, a physician was called, and Mrs. Hunt was removed to a hospital where she died three days later. An autopsy revealed that an operation by instruments had procured a miscarriage.
Defendant testified in Ms own behalf and admitted the truth of the essential facts, including the use of instruments, but denied performing an operation to procure an abortion.
Without the dying declaration, the record clearly leaves no doubt as to the guilt of the defendant.
The dying declaration consists of statements alleged to have been made by Mrs. Hunt to her mother in the hospital at about 11 o ’clock on the day before her death. At that time Mrs. Hunt was very ill. The testimony showed:
‘ ‘ She was throwing herself first one side and then to the other side of the bed and apparently was in considerable pain and very short of breath.”
In answer to a question as to what Mrs. Hunt said on that occasion her mother testified:
“Well, she said she wanted to confess to me, that she could not die without asking me to forgive her.”
At the request of counsel for defendant, in the absence of the jury, this witness was further questioned as to the circumstances under wMch the alleged dying declaration was made. In the absence of the jury she testified as follows:
“Mr. Foster: It is your testimony at this time, is it, however, is it not, that on the occasion that you have referred to, and in which you have fixed the time as approximately 11 o ’clock prior to her death your daughter made a statement to you, I cannot die without asking you to forgive me, or words to that effect?
“A. Yes, sir. * * *
“The Court: Were those her words?
“A. Yes, sir.
“The Court: As you now recall them?
“A. Yes.
“The Court: About what time in the day did she make that statement?
“A. I think about 11 o’clock.
“The Court: And did she follow that immediately with the statement with reference to this alleged illegal operation? ,
“A. Yes, sir, at the same time when I went in the room where she was alone.
“The Court: Is there any question in your mind about her having used those words, that she could not die without confessing?
“A. That is just what she said, if I am permitted to use the words, she said, ‘Mamma, I cannot die without confessing to you what I have done. ’
“The Court: Yery well. I think, gentlemen, that we will have to receive the testimony. You can offer your copy of the testimony then and we will submit it to the jury with the usual instructions.
“Mr. Pierce: May I invite the Court’s attention to the question and answer on page 105 in connection with the interrogation by the Court which has just taken place ?
“The Court: Well, I realize that we have the testimony that the witness has given here on this record and I appreciate the fact that you are entitled to offer impeaching proof, but I think we must receive this evidence, subject to your objection, and leave it to the jury to say whether the statements are qualified as a dying declaration.”
On resuming the trial before the jury, the court announced:
“The testimony will be received. It will be a question for the jury to weigh the statements made under a sense of imminent death or a feeling of imminent death.”
The same witness was then again asked, in the presence of the jury, what her daughter had said to her on this occasion, and she testified before the jury as follows:
“The first thing she said was, she asked me if her husband had told me what she told me and I told her he had, and then she asked me if I would forgive her and I said yes, and then she said that if anything happened, and I said, what did you do, and she said she had a criminal operation, and I said, what had she done and she said that she had had a criminal operation, and I asked her who did it. She said, Dr. Bradfield from Portland.
“ Q. At the risk of repetition, because I am unable to remember whether these questions were asked you when the jury was present or when they were out of the room, I want to call your attention to a little earlier in the evening when you were in your daughter’s room, together with one of your sons, the son that lives at home, and ask you if anything was said by your son about your daughter with respect to future events and what her reply was ?
“A. Well, my son told her to cheer up, she was crying.
“Q. Your daughter was crying?
“A. Yes. Mrs. Hunt was crying. He told her to cheer up, that she would be well in a few days and go home, and she said, oh, no, she never would be able to go home again, that she was all through.
“Q. That is all.”
At other places in the record it appears this witness testified that her daughter had used the expression “if anything happens” she wanted to confess and to be forgiven.
From the foregoing it is apparent that evidence was produced in advance of receiving the alleged dying declaration to determine whether the declaration was made under the belief that death was impending. This conforms to the rule laid down, by this court. People v. Simpson, 48 Mich. 474; People v. Christmas, 181 Mich. 634, and People v. Fritch, 210 Mich. 343.
The determination of the question of declarant’s belief in impending death was left to the jury under proper instructions. No claim is made that the jury were not properly instructed in that regard. See People v. La Panne, 255 Mich. 38. No error was committed in admitting the testimony.
Defendant claims that the dying declaration was merely a conclusion and not such a statement of fact as the deceased declarant might have testified to if present at the trial. This claim is based upon the statement alleged to have been made by the declarant, as testified to by her mother, “she said that she had had a criminal operation. * * * I asked her who did it. She said, Dr. Bradfield from Portland.” In People v. Fritch, supra, abortion is referred to as an “illegal operation.” The terms, “abortion,” “illegal operation,” and “criminal operation,” all have a common usage and, when “criminal operation” is used in such connection as in the case at bar, it must be considered a statement of fact and not merely an opinion or conclusion. We see no merit in this claim.
Conviction and sentence affirmed.
North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred with Boyles, J. | [
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Bushnell, J.
After arrest upon a warrant and examination before a justice of the peace, petitioner John Bourne was charged in an information dated August 29, 1939, with the crime of incest. The information states that on the 19th day of .December, 1935, Bourne had incestuous relationship with his stepdaughter, Hazel Marsh, in violation of Act No. 328, § 333, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-333, Stat. Ann. § 28.565). Bourne pleaded guilty and received a 10-year sentence.
The record shows that over a long period of years Bourne committed successive acts of sexual intercourse with four daughters of his wife by a previous marriage and that seven children were thus born. The statute, supra, under which the information was laid, although slightly changed in its phraseology by Act No. 36, Pub. Acts 1927 (3 Comp. Laws 1929, § 16857), is one of long standing. It reads:
“Any person who is within the degree of consanguinity with another within which marriages are prohibited or declared by law to be incestuous and void, and shall marry such other person, or shall commit adultery or fornication with such other person,- shall be guilty of a felony, punishable by imprisonment in the State prison for not more than ten years.”
The marriage statute (3 Comp. Laws 1929, § 12692 [Stat. Ann. § 25.3]) referred to above is also of long standing. It reads:
“No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, grandfather’s-wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, nor his sister, brother’s daughter, sister’s daughter, father’s sister, or mother’s sister, or cousin of the first degree. ’ ’
Although under the latter statute a stepfather may not marry his wife’s daughter, the “incest” statute by its language places around that crime the limitation of “consanguinity” and, either purposely or inadvertently, excludes “affinity.” Having in mind that criminal statutes must be strictly construed, People v. Goulding, 275 Mich. 353, that the crime of incest is purely statutory, People v. Burwell, 106 Mich. 27, and that the well-known maxim “ expressio unius est exclusio alterius” applies, we must determine whether the information charges a crime known to the law.
Bourne’s stepdaughter, Hazel Marsh, was not related to him by ties of ‘ ‘ consanguinity. ’ ’ The court said in Hicks v. People, 10 Mich. 395:
“The statute creating the offense here charged uses the words ‘within the degrees of consanguinity within which marriages are prohibited,’ et cetera, as descriptive of the class of persons to whom it applies, and merely for the sake of brevity, to avoid the necessity of enumerating specifically all the different degrees of relationship to which the provision is intended to apply.”
Statutes of many States extend the crime of incest to sexual relations between relatives by affinity as well as consanguinity, but the statutes of this State limit the crime of incest to sexual relations between those related by ties of consanguinity. The information on its face negatives such a relationship and does not charge any other crime. Notwithstanding the moral iniquity of Bourne and the fact that he was probably guilty of other crimes, we are forced to hold that the information before us does not describe any crime known to the law of this State. It follows that Bourne was improperly committed to the penitentiary on a void sentence even though he had pleaded guilty as charged. See 27 Am. Jur. p. 290, Incest, § 4; 16 C. J. p. 1301, Criminal Law, § 3072; Commonwealth v. Andler, 247 Mass. 580 (142 N. E. 121); Commonwealth v. Ashey, 248 Mass. 259 (142 N. E. 788); and Chancellor v. State, 47 Miss. 278.
We quote the concluding language of the brief of the attorney general in the instant case, as follows:
“The Michigan statute, strictly construed, makes it a criminal offense to have sexual commerce with others ‘within the degree of consanguinity * * * within which marriages are prohibited; ’ it does not expressly include degrees of affinity within which marriages are forbidden. And we are not in a position to urge that the statute should be extended by implication.
‘ ‘ So grave is the doubt in our mind, that we cannot seriously argue that the petitioner should not be discharged.
‘ ‘ The moral offense which petitioner undoubtedly committed and to which he pleaded guilty, should subject him to punishment, but if such punishment is not provided by the legislature then the lawmakers alone may correct the situation. ’ ’
The petitioner is discharged from custody.
Chandler, C. J., and Boyles, North, Starr, Wiest, Butzel, and Sharpe, JJ., concurred. | [
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] |
Butzel, J.
Claude Post was appointed the administrator of the estate of Albert Potter, who died intestate and whose estate was in the process of being probated in Ingham county. The petition for probate is not shown in the record. In a subsequent petition for determination of heirs, et cetera, it would appear the estate consisted of $22,000 in real estate and $20,000 of personal property; that Albert Potter left no widow, children, brothers or sisters surviving him, but there were 14 nephews and nieces as follows: three children of Nancy M. Curry, a deceased sister; three of Mary Chase, a deceased sister ; seven of Dorcas Holmes, a deceased sister; and defendant Dewey D. Potter, the only child of Curtis Potter, a deceased brother.
It appears that Dewey D. Potter was engaged in the radio business in Port Huron and owed $1,347.11 to plaintiff bank on direct and indirect obligations. The credit was extended by an employee of the bank without proper sanction. The bank, upon learning of the loans, on July 2, 1938, obtained from him as collateral an assignment of any and all money due or to become due him from Albert Potter, deceased. The bank sent the assignment to the administrator of the Potter estate and he acknowledged its receipt. On October 3, 1938, he obtained an order from the probate court of Ingham county authorizing distribution of the sum of $10,500 to the heirs. The administrator sent the sum of $2,625, one fourth of the $10,500 distributed, to plaintiff, as assignee of Dewey D. Potter. Plaintiff applied $1,347.11 of this amount to pay Potter’s indebtedness and turned over to him the balance of $1,277.89, the assignment being retained as security for further loans. On December 19,1938, the administrator obtained a similar order of distribution for a total of $4,200 and sent the bank as assignee of Dewey D. Potter $1,050, one fourth of the amount distributed as his share. Of this latter amount, the bank applied $318 towards the indebtedness and turned over the balance of $732 to Potter. The inventory of the estate clearly indicated that there would be enough on the final distribution to pay Dewey’s indebtedness if, as the administrator indicated, Dewey were entitled to one fourth of the estate. In making these distributions, the administrator, after consulting with the register of probate, assumed that said Dewey D. Potter would inherit by representation one fourth of the estate. Evidently the register of probate and the administrator at the time erroneously believed that the children of deceased brothers and sisters, where there was no surviving brother or sister, would inherit per stirpes and not per capita. The law provides that if such persons are in the same degree of kindred, they shall take equally, otherwise they shall take by right of representation. 3 Comp. Laws 1929, § 13440, as amended by Act No. 79, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 13440, Stat. Ann. § 26.981); 3 Comp. Laws 1929', § 15726 (Stat. Ann. § 27.2891). When both of the former distributions were made by tbe administrator, orders had been entered by tbe probate court in accordance witb tbe petitions filed that tbe amounts be distributed “to tbe several beirs of tbe estate according to tbeir several interests thereto.” It was not until after these distributions and after tbe bank bad made tbe loans and applied tbe proceeds from tbe distributions that tbe mistake was discovered.
In a petition filed in tbe probate court some time later, the administrator asked for tbe determination of beirs and alleged that tbe administrator bad turned over to tbe plaintiff bank one fourth of tbe estate instead of one fourteenth, and that tbe bank bad thus received an overpayment of $2,625. Tbe petition asked that tbe court adjudicate and determine that tbe overpayment in this amount bad been made, and that, if tbe overpayment be not returned to tbe administrator, be be empowered to recover such amount by appropriate action. Overpayments bad also been made to some of tbe other beirs because of tbe same mistake of law and similar authority was also sought to recover these amounts if not voluntarily returned. Notice of tbe petition was sent by registered mail to tbe plaintiff bank which thereupon filed a bill of complaint in tbe instant case in tbe St. Clair county circuit court in chancery. A decree was rendered permanently restraining the administrator from taking any proceedings in tbe probate court for Ingham county for the purpose of establishing any liability on tbe part of tbe bank for tbe refund of any moneys paid by tbe administrator to tbe bank. It further provided that tbe overpayments to tbe bank bad been voluntarily made by mistake of law of tbe administrator and that tbe bank was not indebted to him or tbe estate in any amount whatsoever. Defendant administrator appeals. He claims tbe circuit court bad no jurisdic tion in the premises. Other grounds of appeal need not be considered.
An analysis of the -case indicates that the bank sought a declaration of rights by means of an equity suit, thq sole purpose being to prevent by injunction a plain action at law arising out of events that have already taken place and not calling for any intervention of an equity court. The declaration of rights sought was not to determine what parties might do in the future, but to prevent the probate court of Ingham county from conducting its own proceedings in an orderly manner and also to enjoin the administrator from bringing suit for what he might claim he was entitled to recover. While it is true that the probate court for the county of Ingham could not have entered a judgment against the bank, it could, however, authorize the administrator to bring the snit, if such authorization were deemed necessary. It was the right and duty of the probate court to determine the heirs. The bank had no right to interfere with the regular and orderly proceedings of the probate court. We believe the case is governed by the case of Wolverine Mutual Motor Ins. Co. v. Clark, 277 Mich. 633, wherein we said:
“Is plaintiff in the proper forum? It is plain from the whole statute that the remedy must be sought in the appropriate court and ‘the nature of the case,’ not the pleasure of petitioner, is the test of the forum. It would require clear language to support a holding that the legislature intended so unjust a proceeding as that a party, having a purely legal right of action or defense, may bring a proceeding for declaratory judgment in chancery, at his will, serve process anywhere in the State, and deprive a defendant of his right of trial in his own locality and by a jury of his vicinage. If any doubt exists as to the construction, of the statute (and I have none), such practice should be condemned or at least vigorously discouraged under the discretionary power of the court. * * #
“We hold that plaintiff may not maintain the proceeding in equity because its claim is legal, that the proceeding will not lie in either law or equity because plaintiff has an adequate remedy of defense in the regular law actions to which it may be subjected, and because no final judgment may be rendered.”
The attorney for the appellant on oral argument was asked whether 'the probate court of Ingham county had the right to enter a judgment or order definitely determining the amount due from plaintiff and he conceded that such right would not be asserted. Plaintiff insists that the equity action was proper in order to prevent a multiplicity of suits. There was a single law suit about to be begun by the administrator against the bank. Possibly Dewey D. Potter might have been joined as a codefendant. There was no multiplicity of suits even threatened. The equity decree might have caused other suits to be begun against the other heirs who had been overpaid and who, as stated in the petition for probate, would probably make adjustments for the over-payments but might not do so without suit because of the decree in the instant case. We need not discuss other questions. The circuit court had no jurisdiction in the premises.
The decree is reversed and one may be entered dismissing the' bill of complaint, with costs of both courts to appellant.
Chandler., C. J., and Boyles, North, Starr, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit.
See 3 Comp. Laws 1929, §§ 15750-15754 (Stat. Ann. §§ 27.2915-27.2919).—Reporter. | [
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Wiest, J.
In the interest of public health, safety and welfare of the people of this State, the legislature, by Act No. 122, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 6780-21 el seq., Stat Ann. 1941 Cum. Supp. § 14.629[1] et seq.), regulated the practice of dentistry and dental surgery, provided for the examination, licensing, registration and regulation of persons who may practice the same and, to accomplish that end, created a State board of dentistry, fixed its membership and defined its powers and duties. The act is long, contains 23 sections, and covers upward of 10 printed pages. Plaintiffs are registered and licensed dentists, own and operate dental offices, and filed the bill herein to have the act adjudged inoperative for the reasons hereinafter stated and discussed. Upon hearing in the circuit court the act was adjudged valid and the bill dismissed. Review is by appeal.
Under referendum procedure, fixed by provisions in the Constitution, the act was required to be submitted to the voters of the State for approval or rejection at the November election, .1940. In precincts voting by paper ballot the act was printed thereon in full, preceded by the question of approval or disapproval. In precincts using voting machines there was used on the machines the following proposal prepared by the secretary of State:
“YES
NO
Referendum on Act No. 122 of the Public Acts of 1939, being ‘An act to regulate the practice of dentistry and dental surgery; and to repeal certain acts and parts of acts.’
“An act to regulate the practice of dentistry and dental surgery; to provide for the examination, licensing, registration and regulation of persons who may practice the same; to provide for the disposition of moneys received under this act; to provide penalties for violations of this act, and to repeal certain acts and parts of acts.
“Shall said Act No. 122 of the Public Acts of 1939 be approved?”
A full printed copy of the act was posted in each polling place.
At the election 1,251,650 votes were cast: 735,053 for approval of the act, and 516,597 against approval, or a majority of 218,456 in favor of approval. The votes on the machines totaled 156,202, of which 84,870 approved the act, and 71,332 disapproved. Thus it appears that the act was approved by a majority of unquestioned ballots.
Plaintiffs claim the act was not legally submitted to the voters under the referendum provisions of the Constitution (1908), art. 17, § 3, in the ballots used on the voting machines.
The provision in the Constitution providing for referendum of acts of the legislature, article 5, § 1, at the time of the' submission in this instance, required that “The text of all measures to be submitted shall he published as constitutional amendments are required by law to be published.”
Article 17, § 3, of the Constitution, at the time of the referendum, provided:
“All proposed amendments to the Constitution . submitted to the electors shall be published in full, with any existing provisions of the Constitution which would be altered or abrogated thereby, and a copy thereof shall be posted at each registration and election place. Proposed amendments shall also be printed together with any other special questions to be submitted at such election in full on a single ballot separate from the ballot containing the names of candidates or nominees for public office.”
These provisions regulating procedure under the initiative, referendum and special questions clearly stated essentials accompanying submission, and this continued until the subsequent amendment to article 17, § 3, of the Constitution, effective May 7, 1941, which now reads:
“All proposed amendments to the Constitution and other questions to be submitted to the electors shall be published in full, with any existing provisions of the Constitution which would be altered or abrogated thereby, and a copy thereof shall be posted in each polling place. The purpose of any such proposed amendment or question shall be designated on the ballots for submission to the electors in not more than 100 words, exclusive of caption. Such designation and caption shall be prepared by the secretary of State or by such other authority as shall be hereafter designated by law within 10 days after the filing of any proposal and shall consist of a true and impartial statement of the purpose of the amendment or question in such language as shall create no prejudice for or against such proposal.”
This, of course, did not have retroactive effect, and the ballot prepared for use on the voting machines did not comply with the then command of the Constitution.
Does the mistake of the election officials, in not complying with the letter of the law in preparing the ballot for use on voting machines, render the election void when it appears that the ballots cast on the machines in no respect affect the resnlt?
In People, ex rel. Hartwick, v. Avery, 102 Mich. 572, it was held:
‘ ‘ The electors are not to be deprived of the result of their votes at an election by the mistake of election officers, when it does not appear to have changed the result.”
See, also, People, ex rel. Williams, v. Cicott, 16 Mich. 283 (97 Am. Dec. 141); Attorney General, ex rel. Miller, v. Miller, 266 Mich. 127 (106 A. L. R. 387).
In Michigan State Dental Society v. Secretary of State, 294 Mich. 503, involving the referendum petitions relative to this same act, we held, in a per curiam added to the opinion prepared by the late Justice Potter, that since there were sufficient valid signatures remaining after the exclusion of invalid ones, the measure could be submitted to the electorate.
Assuming that the referendum votes in the precincts using machines were void, nevertheless valid votes were cast in all other precincts which resulted in approval of the act by a majority of all electors voting thereon.
Among the constitutional questions raised is that pertaining to the language of the act limiting appointment by the governor. This portion of section 1 reads:
“The governor shall annually hereafter appoint 1 member of said board, and shall fill any vacancy for an unexpired term, Toy appointment from a list of 3 licensed dentists recommended to him by the Michigan State dental society.”
It is urged that under the rule promulgated in Milk Marketing Board v. Johnson, 295 Mich. 644, such limitation is fatally defective.
However, the act under consideration contains a saving clause, which reads:
“Sec. 22. This act is declared to be severable, and should any word, phrase, sentence, provision or section hereof be- hereafter declared unconstitutional or otherwise invalid, the remainder of this act shall not thereby be affected, but shall remain valid and in full force and effect for all intents and purposes.”
Excision of the provision relative to appointments would not invalidate the act nor render it inoperative for without it the governor has power to make the necessary appointments.
The claim that the act violates the free speech section of the Constitution (1908), article 2, § 4, and the due process section, article 2, § 16, as well as the Fourteenth Amendment to the Constitution of the United States, is fully answered in Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608 (55 Sup. Ct. 570, 79 L. Ed. 1086), and People v. Carroll, 274 Mich. 451.
We find no merit in the appeal and the decree in the circuit court is affirmed. A public question being-involved, there will be no costs.
Chandler, C. J., and Boyles, North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Starr, J.
On April 11, 1940, plaintiffs filed bill of complaint to enjoin defendants from putting into effect a resolution adopted by the common council of the city of Detroit, April 9, 1940. Such resolution reduced the rental of trucks, owned by the individual plaintiffs, and employed by the board of public works of the city of Detroit, from $17.50 to $14 per day. Plaintiffs appeal from decree dismissing their bill of complaint.
Plaintiff Knights of the Iron Horse is a nonprofit corporation whose members, including individual plaintiffs and others, owned trucks which were employed by the department of public works for the hauling of garbage and rubbish. In 1938 the department of public works, ■ with the approval of the common council of the city of Detroit, established a new schedule of truck rentals, as follows:
“For trucks of 10-yard capacity, new or less than three years old, $17.50 per day;
“Three to six years old, $16.50 per day;
“Over six years old, $14.50 per day;
“For trucks of 5-yard capacity, new or less than ' three years old, $11 per day;
“Over three years old, $9.50 per day.”
Later in 1938 individual plaintiffs and other members of the Knights of the Iron Horse submitted the following written proposal to the commissioner of the department of public works:
“The members of this association having older trucks which come under the rate of $9.50 for the 5-yard job and $14.50 for the 10-yard job, feel that they cannot ‘break even’ with these trucks and are therefore desirous of purchasing new equipment so as to come under the higher rates. At the present time upwards of 75 of the members desire to do this! However, as you will readily appreciate these members will find it difficult,’if not impossible, to meet credit requirements of manufacturers unless there be reasonable assurance of steady employment for the trucks.
“We therefore ask that your department give us assurance that the trucks so. purchased will be furnished at least four days work per week for the .three-year period required for making the payment.”
In pursuance of such proposal the commissioner of the department, in#a communication to the common council of the city, requested authority to make 30-montb contracts with not more than 50 per cent, of the employed track owners at a rental rate of $17.50 per day for tracks of 10-yard capacity, “so that they can purchase suitable equipment to match the present city-owned new equipment.” On about November 15, 1938, the common council, pursuant to such request from the commissioner, adopted the following resolution: '
“Resolved, that the department of public works be and it is hereby authorized and directed to enter into 30-month contracts with not more than 50 per cent, of the present employed truck owners in accordance with the foregoing communication.”
Thereafter the department of public works prepared specifications and regulations regarding the height, color, and other requirements of new trucks to be purchased by plaintiffs. Plaintiffs alleged in their bill of complaint that they advertised for and received bids for the purchase of trucks meeting the specifications of the department and accepted a bid for the purchase of such tracks; that at the request of- the department a demonstrator truck was procured and operated for two months; and that the department then approved the purchase of new trucks by plaintiffs. Plaintiffs alleged, in substance, that, in reliance upon the assurances of defendants that the new tracks would be employed for the 30-month period at the specified rental of $17.50 per day, plaintiffs purchased new trucks on a time-payment plan; that such new trucks were employed by the department of public works at the rental of $17.50 per day; and that the city, in setting up its budget for the fiscal year from July 1, 1939, to June 30, 1940, made provision for the payment of the agreed track rental of $17.50 per day. In their bill of complaint plaintiffs also state that:
' “In order to meet the finance requirements laid down by the department of public works,' it was necessary to purchase these trucks upon a contract calling for payment in 30 months, that being a period of timé far exceeding that normally given in the purchase of such equipment. Prior to the actual purchase of such trucks by plaintiffs, conferences and discussions were had between the then commissioner of public works and the then president of the common council of said city, representatives of plaintiffs, and representatives of the finance company which contemplated financing the purchase of this equipment, and in such conferences plaintiffs and the representatives of the finance company were assured by the then commissioner of public works and the then president of the common council, that if the trucks be so purchased by plaintiffs, the city would continue- to rent the same from plaintiffs during the entire life of the 30-month purchase contract, and it was well known to the city of Detroit and the then commissioner of public works and the then president of the common council that plaintiffs would not purchase such trucks and that the finance company would not finance the purchase of the same unless such assurances could be given. In reliance upon such assurances, plaintiffs did make such purchases and the same were financed by the finance company, and plaintiffs have since such time used and operated the trucks so purchased by them in the service of the department of public works.”
Plaintiffs alleged further that, notwithstanding the assurances of the department and the city that such new trucks would be employed for the 30-month period at the agreed rental of $17.50 per day, the common council, on April 9, 1940, adopted the following resolution:
“Resolved, That the department of public works be and it is hereby authorized and directed to con tinue the employing of 10-yard trucks for the hauling of rubbish at a rate of not to exceed $14 per day, and 6-yard trucks for the hauling of rubbish at a rate of not to exceed $10 per day, said employment to be on the basis of seniority rated by the date on which each truck was first employed by the city of Detroit.
“Provided, That the renting of trucks by the city of Detroit on this basis shall become effective immediately upon approval of this resolution, and shall cease on June 30, 1941.”
Plaintiffs claimed that the action of the city in causing them to purchase new trucks by the assurance that such trucks would be regularly employed for a 30-month period at a rental of $17.50 per day, has “created an estoppel making it inequitable that the city of Detroit should * * # before the termination of said 30-month period, refuse to employ such trucks and to pay therefor the rental established by such resolution of the common council of November 15, 1938.” Plaintiffs asked that defendants “be permanently enjoined from putting into effect the resolution of the common council of April 9, 1940,” and from reducing the rental of plaintiffs’ trucks below the price of $17.50 per day.
Defendants filed answer denying plaintiffs’ right to the relief sought and alleged, inter alia, that no contract was executed or entered into in the manner prescribed by title 6, chap. 7, of the charter of the city of Detroit, which provided:
‘ ‘ Contracts to be let to lowest bidder:
“Sec. 3. No contract for the construction of any public building, sewer, paving, graveling, planking, macadamizing, nor for the construction of any public work whatever, nor for any work to be done, nor for purchasing or furnishing any material, printing or supplies for the city, if the expense of such construe tion, repairs, work, printing materials or supplies exceeds $500, shall be let or entered into except to and with the lowest responsible bidder, with adequate security. No contract involving an expenditure exceeding $500 shall be let until a notice calling for bids shall have been duly published in at least one daily paper published in the city, for such period as the common council shall prescribe. & # #
“Unauthorized contracts void:
‘ ‘ Seo. 6. All contracts hereafter made or entered into contrary to or not authorized by the provisions of this charter, shall be void.”
The record indicates that at the trial little testimony was taken, it apparently being conceded by both parties that the issue was. one of law and could be determined on the bill of complaint, answer, and documentary evidence admitted. The trial court’s opinion stated, in part:
“After plaintiffs had introduced certain proofs and records, it was suggested by the court, because of the legal issues presented, that there was no necessity for prolonging the hearing. It was stipulated that all records, documents and correspondence which had been referred to by counsel for the plaintiffs should be considered a j)art of the record. The charter of the city of Detroit was admitted in evidence. For the purposes of this opinion it may be conceded that the facts (as distinguished from legal conclusions) stated in the bill of complaint are true.
“Plaintiffs do not claim that the city is bound by formal contract to pay the higher rate. In fact, it appears that, although the common council in November, 1938, authorized the department of public works to enter into contracts with ‘50 per cent, of the present employed truck drivers’ at $17.50 per day, such contracts were never entered into by the department for the reason that they were declared by the corporation counsel to be invalid as violative of title 6, chap. 7, § 3, of the charter, which requires competitive bids following advertising for the same on contracts involving expenditures in excess of $500. (This opinion, at the time it was rendered by the corporation counsel, was communicated to the plaintiffs’ representative.)
“Plaintiffs, rather, base their claim upon a theory of estoppel, asserting that they, in reliance upon assurances given them by the commissioner of public works and other city officials, purchased a large number of motor trucks, of specifications indicated by the commissioner, and that they obligated themselves to an amount aggregating several hundreds of thousands of dollars in instalment payments for such trucks over a period of 30 months from date of purchase. Plaintiffs claim that the commissioner of public works at that time agreed that, if plaintiffs did purchase trucks of the specifications outlined by him, the city would rent such trucks at $17.50 per day for the 30-month period. (It should be noted that defendants deny these allegations, but, as stated above, the allegations, for the purpose of this opinion, may be considered as true.)
“Counsel for the plaintiffs argues that this claimed ‘arrangement,’ short of a contract, binds the city by way of estoppel, and urges, particularly, that, inasmuch as plaintiffs have obligated themselves by contracts to purchase trucks, the city is not in a position now to restore the status quo of the plaintiffs. * * *
“It seems clear to this court that, whether plaintiffs base their position on ‘contract,’ ‘arrangement,’ so-called ‘moral obligation,’ or ‘estoppel’ they are in no position to claim equitable relief against the city for the reason that the claimed official acts upon which they rely (the existence of which, of course, is denied by the city) were in direct violation of mandatory provisions of the city charter, were utterly void, and could give rise to no claim, legal or equitable, against the city. * * *
‘ ‘ Counsel complains that plaintiffs changed their status quo in reliance upon the assurances of city representatives, and that the city cannot now restore plaintiffs to their original position. It is conceded by plaintiffs that they have been paid in full for all services rendered by them before the rate of pay was reduced by the resolution of the common council on April 9, 1940. It is true that the plaintiffs have motor trucks on their hands, upon which large sums are due. But these trucks were purchased by them in the absence of any contract between them and the city, and after plaintiffs had been advised by the corporation counsel and by their own attorney (see Exhibit 20) that no such contract could legally lie entered into, in view of the charter, unless competitive bids, following legal publication, were first made. For this court now to enforce plaintiffs’ demands would be, in effect, to say that the ‘arrangement’ relied upon had the effect of a contract, although a contract to the same effect would have been illegal and void.”
Decree dismissing plaintiffs’ bill of complaint was entered May 15, 1940.
It is admitted that no contract was executed between plaintiffs and defendants for the employment of individual plaintiffs and new trucks to be purchased by them. It is also admitted there was no advertisement for bids in connection with the employment of plaintiffs and their trucks. The corporation counsel of the city had advised that the proposed contract between plaintiffs and the department of public works would be invalid under the provisions of the city charter (above quoted) requiring advertisement for bids in case of an expenditure involving more than $500. The president of the Knights of the Iron Horse was informed of the corporation counsel’s opinion and advice.
Plaintiffs, conceding that no formal contract was executed and that the charter provisions were not complied with, nevertheless contend that failure to comply with the charter provisions was a mere irregularity and that, under the circumstances, the city was estopped from denying the validity of the alleged contract. Plaintiffs’ counsel states in his brief:
“As stated, the only reason the commissioner did not enter into formal contracts with plaintiffs was that he was advised by the corporation counsel that the charter provision required the prior advertising for bids because an expenditure of more than $500 was involved in the case of each truck. However, all the facts and circumstances as set forth in the bill of complaint show that there was a contract, though informal, entered into between the commissioner and plaintiffs. This action of the commissioner, in the absence of bids, was an irregularity; the power to contract was present, hence the contract was not ultra vires. The city should, therefore, now be estopped to take advantage of the technical requirement of the charter.”
To sustain plaintiffs’ contentions would result in enforcing a contract which was invalid, because it was not made in compliance with the mandatory charter provisions above quoted. To enforce the alleged contract under plaintiffs’ theory of estoppel would require a complete disregarding of such charter provisions.
The rule is established in this State that a’charter provision requiring competitive bidding is mandatory and that a municipality is not bound by contracts made in defiance of it.' In the case of City of Saginaw v. Consumers’ Power Co., 213 Mich. 460, 479-481, Mr. Justice Fellows said:
“The charter of the city of Saginaw contains the following provision:
“ ‘No contract for the expenditure by the city of a sum exceeding $250 for any purpose whatsoever, shall be entered into unless the same shall be let upon competitive bids in the manner herein described.’
“The contract between the city and the power company.for lights other than street lights and for power was not let at a competitive bidding and the facts set up in the bill, and the records before us demonstrate that the contract required an expenditure by the city of more than $250 per month and a very large sum covering ‘the period of the contract. Without such competitive bidding, could a valid contract be entered into between the power company and the city as a consumer ? # * *
“Is the provision of the charter of the city of Saginaw now under consideration a mandatory or a directory provision? The provision requiring competitive bidding is one common to most municipal charters. It is a provision designed for the protection of the public. Speaking of such provisions, it is said in 20 Am. & Eng. Enc. Law (2d Ed.), p. 1165:
“ ‘The object of [all] such provisions is, it has been said, to “prevent favoritism, corruption, extravagance, and improvidence” in the awarding of municipal contracts, and they should be so administered and construed as fairly and reasonably to accomplish such purpose.’
“That a provision requiring competitive bidding is mandatory, that the municipality is not bound by contracts made in defiance of it, finds support in the great weight of authority and is in accordance with the holdings of this court. * * *
“The city was not, and is not, bound by its contract made with the power company without competitive bidding and in violation of the mandatory provision of its charter. ’ ’
“The requirement of competitive bidding in the letting of municipal contracts is uniformly construed as mandatory and jurisdictional and nonobservance will render the contract void ánd unen forcible.” 3 McQuillin on Municipal Corporations (2d Ed.), p. 859, § 1287.
See, also, Attorney General, ex rel. Allis-Chalmers Co., v. Public Lighting Commission of Detroit, 155 Mich. 207; Mackey v. Township of Columbus, 71 Mich. 227; Stratton v. City of Detroit, 246 Mich. 139; Zottman v. City and County of San Francisco, 20 Cal. 96 (81 Am. Dec. 96); Richardson v. Grant County, 27 Fed. 495; Brady v. Mayor, Aldermen and Commonalty of the City of New York, 16 How. Prac. 432, affirmed 20 N. Y. 312; Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406 (54 N. E. 372); La France Fire-Engine Co. v. City of Syracuse, 33 Misc. 516 (68 N. Y. Snpp. 894); Smeltzer v. Miller, 125 Cal. 41 (57 Pac. 668); Springfield Milling Co. v. Lane County, 5 Ore. 265; Cawker v. Central Bitulithic Paving Co., 140 Wis. 25 (121 N. W. 888).
The above-quoted charter provisions were not directory, bnt were mandatory. The alleged contract for employment of individual plaintiffs and their trucks, which contract plaintiffs seek to enforce, involved an expenditure, by defendants, of more than $500. Such contract was invalid, because it was not made in compliance with the charter provisions, Such invalid contract cannot be given validity under plaintiffs’ theory of estoppel. The commissioner of public works and the common council of the city could not obligate the city on a contract made in defiance of mandatory charter provisions.
In view of our conclusions, other questions do not require consideration.
The decree of the trial court entered May 15,1940, is affirmed, with costs to defendants.
Chandler, C. J., and Boyles, North, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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Wiest, J.
Plaintiff, an employee of the JohnsManville Sales Corporation, a subcontractor, in and about the construction of the Ottawa street power plant of the city of Lansing, on July 12, 1939, while about his work, was struck by a falling three-quarters inch iron pipe, 12 feet and 3% inches long, and severely injured. Claiming .the pipe fell by reason of the negligence of an employee of either defendant National Valve & Manufacturing Company or Murphy Supply Company, two other subcontractors, plaintiff brought this suit against both to recover damages and, upon trial by jury, had verdict and judgment against defendant National Valve & Manufacturing Company for $19,833. Motions of the National Valve & Manufacturing Company for a directed verdict, for judgment non obstante veredicto, and for a new trial, were denied, and this appeal taken.
At the time of the accident plaintiff was in the act of taking a stepladder which had been let down by the aid of a pulley in a shaft or opening used for hoisting and lowering purposes.
The first question is whether the evidence disclosed actionable negligence on the part of an employee of defendant in placing the pipe.
The building had stairways and a well or opening through the floors, and this opening, at the floor where the pipe was left, had an iron railing about it and a toe plate reaching some distance above the floor. The building was in the course of construction and employees of other subcontractors about various undertakings were engaged in work therein. The evidence shows that a steamfitter in the employ of defendant used the iron pipe to align an opening and, having further use for it later, laid it on the temporary floor nest to the toe plate at the well opening at the elevation from which it later fell.
Was this negligence? The permanent floor had not been laid but a temporary floor, consisting of long planks placed on I-beams, supporting other planks laid crosswise thereon and up against the toe plate, made a floor from which the iron pipe could not fall unless the planks were moved or disarranged.
There was testimony that just before the pipe fell employees of another subcontractor had taken material up the well shaft and piled it on the planking at the elevation where the pipe had been left. There was no direct evidence as to the cause of the falling of the pipe, but it is evident that it was dislodged by some human agency from the place where defendant’s employee had laid it. If the pipe was dislodged and precipitated by agency other than defendant’s then defendant is not liable. Whatever caused the pipe to fall, it was not shown to be by reason of any act of an employee of defendant. We do not think it can be said that the leaving of the pipe next to the toe plate on the floor constituted actionable negligence, and, no further act of defendant’s employees causing the pipe to fall being made to appear, plaintiff failed to present a case for consideration by the jury.
We cannot hold the laying of the pipe alongside of the toe plate constituted a potential danger. If it was disturbed and thereby caused to fall, the disturber was the one creating it a menace-. It is at this point the proof fails to show any act by defendant’s employees disturbing or dislodging the pipe, and this want of proof cannot be supplied by presumption.
As we said in Patt v. Dilley, 273 Mich. 601:
“Presumptions disappear when the facts appear. The facts appear when the evidence is introduced from which the facts may be found. Presumptions cannot be weighed against evidence for they fade out in the light of evidence, no matter how contradictory the evidence.”
See, also, Maki v. William Bonifas Lumber Co., 278 Mich. 610; Gillett v. Michigan United Traction Co., 205 Mich. 410; Christiansen v. Hilber, 282 Mich. 403.
Upon the record the circuit judge should have directed a verdict in favor of the defendant at the close of plaintiff’s proofs. To sustain this verdict and judgment would require employment of the rule res ipsa loquitur, and in this jurisdiction that is not done. This determination renders it unnecessary to consider other points raised.
The judgment is reversed, without a new trial and with costs to defendant.
Chandler, C. J., and Boyles, North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Boyles, J.
. The only question here is whether a certain instrument alleged to be the last will and testament of one Ella Hoffman has been revoked. More precisely the question is whether the writing claimed to be a revocation of the will was procured by undue influence. The will itself is not otherwise in question.
On September 16, 1939, the testatrix, Ella Hoffman, executed her last will and testament leaving all her property to Henry Wade Hoffman, proponent, and appellant herein (hereinafter called Wade Hoffman), naming him as executor. He is the only grandson of the testatrix and also the only son of H. Paul Hoffman who contests the will. Paul Hoffman in turn is the only son and heir-at-law of the testatrix and, therefore, would take the entire estate in the event of her dying intestate. Paul Hoffman claims that his mother, Ella Hoffman, subsequently revoked the alleged will of September 16, 1939, and died intestate. If his claim prevails, he succeeds to all of the property of Ella Hoffman as her sole heir-at-law; if not, his son, Wade Hoffman, takes her property by virtue of b'eing the sole devisee and legatee in the alleged will.
On January 11, 1940, Ella Hoffman executed an instrument in writing purporting to revoke her will, and Paul Hoffman relies upon this alleged revocation to sustain his claim that Ella Hoffman died intestate. On the other hand, Wade Hoffman, who would take under the will if not revoked, claims that the alleged revocation was procured by undue influence and coercion, and the case hinges upon the proof adduced in that regard.
Ella Hoffman died April 17,1940, at the age of 87 years, approximately three months after the alleged revocation was executed. Shortly thereafter, Wade Hoffman filed a petition to admit the alleged will to probate and Paul Hoffman filed a notice of contest on the sole ground that the alleged will had been revoked by the second instrument hereinbefore referred to. Wade Hoffman thereupon filed a notice of contest against admitting the second instrument as a revocation, claiming that it had not been signed by Ella Hoffman, that it was a forgery, that if signed it was procured by undue influence and coercion, and that Ella Hoffman was mentally incompetent at the time the alleged revocation was executed. The probate judge certified the contest to the circuit court for hearing under the provisions of Act No. 288, chap. 1, § 36, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1 [36], Stat. Ann. 1941 Cum. Supp. § 27.3178 [36]). The case was tried by jury. At the conclusion of the testimony, counsel for Paul Hoffman moved for a directed verdict on the ground that the first instrument had been revoked and that there was no competent evidence to show that the second instrument (the alleged revocation) was procured by undue influence or coercion. Decision thereon was reserved by the court under the Empson act, 3 Comp. Laws 1929, § 14531, amended by Act No. 44, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 14531, Stat. Ann. 1941 Cum. Supp. §27.1461), and the case was submitted to the jury on two questions of fact, (1) whether the alleged revocation was a forgery, and (2) if signed, whether it was procured by undue influence or coercion. Two special questions were submitted to the jury and were answered by the jury as follows:
' “Question No. 1.
“Did Ella Hoffman sign the revocation of January 11, 1940?
“Answer. Yes.
“Question No. 2.
“Was the signing of the revocation of January 11, 1940, by Ella Hoffman the result of undue influence brought to bear upon her by H. Paul Hoffman and Marguerite Hoffman?
“Answer. Yes.”
The will leaving the entire property to Wade Hoffman was declared to be the last will and testament of the deceased. Counsel for Paul Hoffman thereupon moved the court for judgment non obstante veredicto on the ground that there was no competent evidence to support the verdict that the second instrument was the result of undue influence or coercion. The two motions were brought on for hearing and were granted, the court finding as follows :
“It is my opinion that either I should have granted the motion and directed a verdict, or that now the judgment may be entered, notwithstanding the verdict of the jury, in favor of Paul Hoffman, on the ground that there is not sufficient testimony upon which a verdict can stand which holds that this revocation was secured through undue influence. ’ ’
Judgment was entered accordingly, from which Wade Hoffman, the proponent for the will, appeals. No motion for new trial was made by Wade Hoffman and the controlling question is whether there was competent evidence to support the verdict that the revocation was the result of undue influence or coercion.
The testimony taken at the trial covers over 600 pages of printed record. In determining whether the court erred in entering judgment for the contestant on the motion for a directed verdict, the competent testimony and legitimate inferences to be drawn therefrom must be viewed in the light most favorable to Wade Hoffman. In re Hayes’ Estate, 255 Mich. 338; In re Lake’s Estate, 271 Mich. 675.
We' have examined the record at length to ascertain the facts and the inferences to be drawn therefrom. Much of the testimony relates to the question whether the signature of Ella Hoffman to the revocation was a forgery and whether she was mentally competent at the time. These questions were submitted to the jury under proper instructions and are not now before us'. The facts relied upon by appellant to establish that the revocation was induced by undue influence and coercion are substantially as follows: The relations between the testatrix and Wade Hoffman were friendly and continued so until her death; for some length of time before, and at the time of making her will, she intended to give all her property to Wade. She was not influenced to make the will and was of sound mind when it was made as well as’when the alleged revocation was executed and for some time thereafter. Paul Hoffman and his wife were not always kind to the testatrix, found fault with things she did, and made her home unhappy for her. In the fall of 1939, Wade went to Florida and the testatrix kept up a correspondence with him. In these letters the testatrix told Wade of many things that Paul and his wife were doing and were saying to the testatrix against Wade. ' They were written between the date when the will was executed, September 16, 1939, and the time when the revocation was signed, January 11, 1940. Appellant summarizes the purport of these letters as ¿follows:
“In exhibit 15-a, a letter from testatrix to Wade in her own handwriting, dated December 1, 1939, she expressed her desire to hear from Wade; in her letter, exhibit 16-a, postmarked December 15, 1939, to Wade, testatrix said she was pleased to hear from Wade and that he was well and safe, that he must take care of his health, and ended the letter with the words ‘Take care of yourself. With God Blessing, Your Grandmother.’ In her letter to Wade, exhibit 17-a, postmarked December 17, 1939, testatrix expressed hope that Wade would not overdo, hoped he would have a good Christmas, and stated ‘You have my best wishes and prayers every day.;’ in her letter to Wade, exhibit 18-a, postmarked December 23,1939, she requested Wade to keep her posted where to address him, expressed pleasure over a picture of him which she placed on her desk, and further stated ‘I look for your letters, a great comfort to me. Read them many times. I will write you Sunday. I will be alone all day. Best wishes;’ in her letter to Wade, - exhibit 19-a, postmarked December 25, 1939, testatrix told Wade of calling up his mother who came over and had a nice visit with testatrix. She concluded this letter with the following words ‘ Take care of yourself. I am looking fomvard to your return. You have my prayers and best wishes for you to have health and prosperous New Year.’ This letter was sent by air mail.
“On January 6, 1940, when testatrix was very sick and weak, and didn’t feel she could write, five days before the date of the alleged revocation, testatrix had the nurse write a letter to Wade in which she said ‘I was indeed very delighted to hear of your success. It has made me feel very happy. Will help to make me get well. You have my very best wishes and my prayers,’ which was signed ‘your loving Grandmother.’
“Wade sent his grandmother letters, flowers and fruit and perfume from Florida.
“Testatrix mentioned her grandson, Wade, to the nurse, and said that she was very happy and pleased about his success as a boat captain in Florida. She seemed very fond of him. * * *
“Testatrix wrote to Wade, exhibit 19-a, on December 25, 1939, that Paul ‘drinks too much.’
“In 1939 Paul bought a pleasure boat, a sleeping cruiser, upon which he intended to spend from Friday to Sunday nights, and Paul told testatrix that she would have to stay alone or go with them on that boat. Testatrix wrote in her letter that she thought the boat was not for her, a woman of her age. She said ‘no good would come of it.’ However, Paul took testatrix out on the boat about a dozen times in 1939 to sleep on the boat and stay over night. # *
“In her letter to Wade, dated December 1, 1939, exhibit 15-a, testatrix wrote concerning Paul: ‘My son has very little to say to me. I speak to him when it is necessary;’ in her letter, postmarked December 15, 1939, exhibit 16-a, testatrix wrote to Wade of Paul’s abuse to her as follows: ‘I can not tell you all, it was simply awful. And he said Wade is not any more a captain than I am, and one reason that he stays here is that he feels obligated to take care of me and that I am very ungrateful for all that he has done, which I had to hear. That what I had done for him was nothing’ and further ‘He said that he could take anything out of the home if he wanted to;’ in her letter, postmarked December 25, 1939, exhibit 19-a (17 days before the date of the alleged revocation, exhibit 2), testatrix wrote to Wade as follows: ‘Your father is better. The swelling has gone out of his hand. He does not take care of himself. Drinks too much. I have little to say to him. He has not been out of his mind lately. Marguerite is very disagreeable at times.’ # * *
“On December 1, 1939, in exhibit 15-a, testatrix wrote to Wade as follows: ‘Marguerite thinks that you neglected me shamefully. Then for me to make so much of you.’
“Again testatrix wrote to Wade, on December 13, 1939, exhibit 16-a, concerning Paul’s acts, as follows: ‘I asked your father (Paul) if he would read (Wade’s letter). He took it but said nothing, but came back with it in his hand. I cannot tell you that he said, only one thing that when you got any presents from me, he had to almost had to force you to telephone me your thanks. And the I gave your mother. One thing was the chocolate set. He never knew what became of it and other things. Then he said and you are talking to her over the telephone. I cannot tell you att. It was simply awful and he- said Wade is not any more a captain than I am. And one reason that he stays here is that he feels obligated to take care of me. And that I am very ungrateful for all that he has done which I had to hear. That what I had done for him was nothing. Do not let this bother or don’t let him know that I have told you anything for it will make it very unpleasant for me. He will never see any of your letters.’ ”
These letters were offered and received in evidence at the trial without objection, were used by appellee, Paul Hoffman, for cross-examination and to prove handwriting. On the argument before the court on the motions, counsel for appellee attempted to question the admissibility of these letters as follows :
“I believe that the point before the court, and it is the only point before the court that I know of, is the question of whether or not statements made by the testatrix in correspondence, which she addressed to Wade Hoffman, her grandson, are admissible in evidence on the question of undue influence as proof of what they state, 'or of the facts which they purport to state; in other words, as substantive proof.”
The court correctly ruled that these declarations of the testatrix might be considered, but not to establish the fact of undue influence (Zibble v. Zibble, 131 Mich. 655), and further ruled that these letters standing alone did not constitute evidence of undue influence. This ruling was correct. In re Estate of Reynolds, 273 Mich. 71; In re Livingston’s Estate, 295 Mich. 637; In re Balk’s Estate, 298 Mich. 303.
After considerable testimony regarding the source of the property owned by testatrix, previous history of Paul and of his present wife, the rest of appellant’s testimony may be summarized as follows: That testatrix was a very religious woman; that Paul kept intoxicating liquor in the home and used it too much, making it distasteful for her to live there, spent too much time entertaining customers and drinking, failed to turn over to testatrix the moneys due her from her husband’s estate, improperly administered his father’s estate as trustee, was unkind to his first wife (Wade’s mother); that Paul didn’t get along with Wade, had a hot temper, was abusive to testatrix at times; that testatrix kept to her own room as a prison; that the statements made by testatrix in her letters to Wade were true; much testimony about the physical condition of the testatrix, that she became quite ill 10 days before the date of the alleged revocation, was suffering from gall bladder trouble, uremia, arteriosclerosis, nephritis, senility, arthritis and heart trouble, that the nurse and doctor gave testatrix medicine to alleviate pain, that she was in bed and had a nurse in attendance. Appellant relates the circumstances under which the claimed revocation was executed January 11, 1940, as follows:
“On this same date, January 11, 1940, at the hour of 10 o’clock at night, Paul went into testatrix’ bedroom, where she was bedfast, and said to testatrix, ‘Have you given anything to Wade,’ to which testatrix replied, ‘He (Wade) is amply provided for,’ and Paul said to testatrix, ‘Well, what have you done?’ Testatrix replied that she had made a will for Wade, and Paul said, ‘Oh, you have.’ Then Paul asked testatrix, ‘Do you want to correct it?’ so Paul and his wife, Marguerite, went out in the other room and Marguerite sat down and took a piece of paper, and Paul dictated, and Marguerite wrote exhibit 2, which is the alleged revocation. Then Paul and Marguerite together came back into testatrix’ bedroom with this paper, and Paul sat down on the edge of the bed and Paul said to testatrix ‘Do you want to sign this?’ Paul then turned to the nurse and said ‘Get the pen and something for her to write on.’ Testatrix was sick at that time, bedfast, and had been bedfast ever since she first took sick about the 1st of January, 1940. She had been right down flat on her back all that time. Marguerite propped testatrix up in bed so she could sign the instrument, exhibit 2. Paul didn’t explain anything to testatrix. Testatrix was quite deaf, very hard of hearing. Paul told testatrix where to sign. Then they laid testatrix back again, and she reclined, sort of sighed and said: ‘Well, now, maybe I can sleep tonight,’ ‘Now, perhaps I can get some sleep.’ ”
Appellant further showed that after January 1, 1940, Paul and his wife prevented others from seeing and conversing with the testatrix, Paul’s wife was constantly present when anyone did talk with testatrix, that some friends, alleged to be friendly to Paul and his wife, were permitted to see the testatrix during this time; that Paul failed to notify Wade of his grandmother’s death. Testatrix lived three' months after the revocation was executed, and the nurses and others testified she slept better, her mind seemed relieved.
The circuit judge, in granting the motion for a directed verdict reserved under the Empson act, said that the letters which appellant claimed to show undue influence on the part of Paul Hoffman tended to show, on the contrary, reasons why the testatrix might be influenced against Paul rather than in his favor; that the inference to be drawn from proponent’s entire testimony was that testatrix was more likely to be influenced in favor of Wade than otherwise. The court found testatrix was fully competent to execute the revocation, that the inference to be drawn from all the testimony was that she felt she had made a mistake in leaving her property to her grandson rather than to her son, that it worried her, and that she and no one else changed her mind in that regard.
In this conclusion, we concur. If the testatrix thought she had committed a wrong, she had a right to correct it and her correction of it must stand unless she was unduly influenced to execute the revocation. All legitimate inferences from proponent’s testimony fail to show that she was unduly influenced to execute the revocation or that it was not her own free act and deed willingly and voluntarily done. The circumstances under which the revocation was signed on January 11th in themselves negative any legitimate inference of undue influence. Witnesses to the instrument testified that it was read to her carefully and slowly, and that she knew exactly what she was doing. There is no testimony that during the three months she lived thereafter she was worried or sorry. In fact, the testimony is the opposite, she stopped worrying, was able to sleep, and her mind seemed to be at ease again. The merits of the controversy between her son and her grandson as to which one was more entitled to be her beneficiary are not for the jury nor for the court to decide. As usual in these cases, th'é testimony largely contemplates a determination of the equities between proponent and contestant, rather than whether the testatrix was unduly influenced to revoke her will.
Proponent’s testimony unquestionably shows motive for and opportunity to exercise undue influence. This is not sufficient to establish undue influence. In re Hayes’ Estate, supra. Influence, in order to be classed as “undue,” must place tbe testator in the attitude of saying “It is not my will, but I must do it. ’ ’ The coercion or compulsion must be sucb that free agency is destroyed. The dominating mind of another must dictate what the testator shall do and compel him to adopt tbe will of another instead of exercising bis own. Tbe facts may show that be was advised, persuaded, solicited, importuned or entreated, but, so long as be is not rendered incapable of acting finally upon bis own motives and so long as be remains a free agent, bis decision is bis own and tbe action is bis own and not that of another. In re Williams’ Estate, 185 Mich. 97; In re McIntyre’s Estate, 193 Mich. 257; In re Balk’s Estate, supra.
Judgment is affirmed, with costs to appellee.
Chandler, C. J., and North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Starr, J.
Defendant Marquette Park Company appeals from foreclosure decree determining said defendant liable for mortgage indebtedness and deficiency resulting from foreclosure sale.
On December 1,1927, Prank L. H. St. Amour and wife executed trust mortgage to the Guaranty Trust Company of Detroit, as trustee, covering property located at 14500-14502 Bast Jefferson avenue, Detroit, together with rents and profits therefrom. Such trust mortgage was given to secure an indebtedness of $60,000, represented by six per cent, first mortgage bonds executed .by the St. Amours and maturing serially, $3,000 on December 1, 1928, and on December 1st of each year thereafter until Decern ber 1,1937, when the balance of $33,000 became due. The trust mortgage was duly recorded; the mortgage tax paid; the bonds qualified for sale and sold. Plaintiff, Union Guardian Trust Company, was subsequently appointed successor trustee under such mortgage.
On April 9, 1928, the St. Amours, mortgagors, ■ conveyed the property by deed to defendant Mar- • quette Park Company, a Michigan corporation, which assumed and agreed to pay the mortgage indebtedness. On May 28,1928, the Marquette Park Company conveyed the property by deed to defendant Freada E. Ullman, who took subject to the mortgage indebtedness, but did not assume and agree to pay the same. The trust mortgage contained acceleration provision, reading, in part, as follows:
“Should default be made in the payment of any of the principal or interest specified in said bonds or coupons, secured by this mortgage, or in the due observance and performance of any other covenant, agreement, provision or condition herein required to be kept or performed by said mortgagor, and should such default continue for a period of 30 days, the whole principal sum of said bonds, together with all arrearage of interest thereon, shall, at the option of said trustee, and without notice, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything herein or in said bonds contained, to the eon- , trary notwithstanding. The commencement by said trustee of proceedings to foreclose this mortgage in any manner authorized by law, shall be deemed an exercise of said option.”
There was default in payment of the bonds maturing December 1, 1931; and on December 31, 1931, plaintiff wrote defendant Ullman the following letter:
“Mrs. Freada E. Ullman,
“C/o J. L. Freud,
“835 Penobscot Bldg.,
“Detroit, Michigan.
“Re: Guaranty Trust Loan #1100
“Dear Madam: 14500 East Jefferson Avenue
“After a conversation with your representative, Mr. J. L. Freud, we offer the following proposal in connection with curing the default under your bond issue:
“At present your default consists of nonpayment of $3,000 in bonds maturing December 1, 1931. In order to properly protect the interest of the bondholders we feel it necessary to request that you deposit with us each month the net rents from the property after payment of the necessary operating expenses. Under the terms of the trust mortgage, we are given the right to proceed to collect all rents from the property, however, we feel that any legal action in this regard would tend to disturb the tenants and might create an unsatisfactory condition. We believe that an arrangement as outlined above would be satisfactory to the holders of defaulted bonds and should be equitable to all concerned.
“Please let us hear from you immediately as to your approval of this plan.
“Yours very truly,
“Chas. R. Dunn,
“Executive Vice-President.”
In pursuance of such letter Mrs. Ullman, who was in possession of the property, deposited $500" with plaintiff trustee on January 12, 1932, and on or prior to February 5, 1932, deposited with plaintiff, apparently from rents collected, sufficient additional funds to cure the default of December 1, 1931. Mrs. Ullman thereafter continued to deposit with plaintiff the net rentals from the property. Defendant Marquette Park Company was not a party to such rent deposit arrangement between plaintiff and Mrs. Ullman.
There was default in payment of the bonds maturing in 1932 and each year thereafter. No notice of such defaults was given defendant company until after foreclosure proceedings were instituted March 18, 1938, by plaintiff at the request of a bondholder.
The bill of complaint alleged there was due on outstanding bonds the principal amount of $48,000, together with interest of $17,513.58, and Federal tax of $234, making a total of $65,747.58, and sought foreclosure of the mortgage and deficiency decree against defendant Marquette Park ’ Company. Freada E. Ullman, the Marquette Park Company, and Arundel B. Wigie, land-contract purchaser of the property, were made parties defendant. The record indicates that the original mortgagors, St.. Amour and wife, had died prior to the foreclosure. So far as the record shows, defendants Ullman and Wigie did not enter appearance.
On August 8, 1938, defendant Marquette Park Company filed answer, generally leaving plaintiff to its proofs, and on December 8, 1939, filed amended answer which raises the principal questions in this case. The amended answer states, in part:
“(1) That on or about May 28, 1928, this defendant conveyed said mortgaged premises to Freada M. Ullman; that on or about December 31, 1931 [date of above-quoted letter], said plaintiff and said Freada E. Ullman entered into a valid agreement extending the time of payment of said mortgage without the knowledge or consent of this defendant. In the event it be determined that, as alleged in plaintiff’s bill of complaint, said Freada E. Ullman assumed and agreed to pay said mortgage, said extension agreement hereinbefore referred to has released this defendant of and from any personal liability on said mortgage.
• “ (2) That if it be determined Freada E. Ullman did not, in the grant to her, assume the mortgage, the effect of her said extension agreement with said plaintiff would be the same as set forth in the preceding paragraph of this amendment or, in the alternative, as follows:
“ (A) As between said plaintiff and this defendant, said plaintiff is precluded, estopped and barred from claiming interest coming due subsequent to the date of the extension agreement to be a part of the mortgage debt.
“(B) Said plaintiff, by reason of said extension agreement, took the land as its sole security to the extent of its value as of the date of the extension agreement, which value was greater than the amount of the mortgage debt, and this defendant was released of personal liability on said mortgage.
“(3) That said plaintiff has frequently granted extensions of the payment of the mortgage debt to said Freada E. Ullman without the knowledge or consent of this defendant and has never notified this defendant of the fact that said mortgage was in default; that by its conduct and silence, said plaintiff has induced this defendant to believe that it was unnecessary to protect itself by resorting to its right of subrogation; that if said plaintiff had promptly instituted foreclosure proceedings at the time said mortgage was first in default, this defendant would have fully been able to protect itself, but is now unable so to do; that the silence and conduct of said plaintiff constitutes laches, and it is thereby barred and estopped from now claiming that this defendant is personally liable on said mortgage.
Dated: December 6, 1939.”
Plaintiff filed reply denying the allegations of defendant company’s amended answer. The case was referred to a circuit court commissioner to take proofs. Plaintiff’s representative testified as follows regarding the above-quoted letter of December 31, 1931, to Mrs. Ullman, and regarding deposit of rents:
“Witness (continuing): We did not get a reply to that letter in writing from Mrs. Ullman. At the time the letter, defendant’s Exhibit 1, was written, on December 31, 1931, there was a default in payment of this mortgage to the extent of $3,000 in bonds maturing December 1, 1931. At that date, December 31,1931, according to our records, Freada Ullman was in actual possession of the premises covered by the mortgage. The Union Guardian Trust Company was not in possession. According to our records, the last contract purchaser was collecting the rents. Union Guardian Trust Company was not collecting the rents. Mrs. Ullman acknowledged that letter by depositing on January 12, 1932, the amount of $500 with the Union Guardian Trust Company, trustee. That $500 applied on the coupons due December 31, 1931. The $3,000 default that I just spoke of was cured on February 5th. Mrs. Ullman complied with the arrangement set forth in the letter, defendant’s Exhibit 1.
“Q. And commencing with that date Mrs. Ullman deposited with you the collection of rents from the property?
“A. Substantially, yes.
“Q. Prior to December 31, 1931, you didn’t get as such, the rents from the property.
“A. The Union Guardian Trust Company didn’t.
“Q. But you did after this letter. What date was that $3,000 default cured, on December 31, 1931, cured?
“A. That was cured by deposit on [of?] funds made on February 5, 1932. From tbe date of tbis letter (defendant’s Exhibit 1) until tbe date tbe default was cured, no action was instituted to foreclose tbis mortgage. No action at all was commenced to collect tbe bonds. I do not know tbe amount of tbe rents that tbe property was paying from December 31, 1931, until February 5, 1932, but tbe deposit amounted to, for that period, $2,200. Tbe $2,200 deposited during that period of time apparently represented rents during that period. We do not have in our files or any other place any agreement between Marquette Park Company or Union Guardian Trust Company or Mrs. Ullman by which Marquette Park Company became a party to tbis rent deposit arrangement specified in tbe letter of December 31, 1931, defendant’s Exhibit 1. We have no record of Marquette Park Company entering into that. * * *
“The next default after December 31,1931, under tbis mortgage, occurred with tbe nonpayment of tbe coupons due June 1, 1933.
“Q. Now then you have already testified that as a result of tbis letter of December 31, 1931, tbis arrangement was made by which income was paid to tbe trust company. Did that arrangement continue?
“A. Yes.
“Q. You have been in possession ever since?
“A. That is right. * * *
“Q. If it were not for tbe fact that tbe trust company bad made tbis agreement expressed in tbe letter to Mrs. Ullman, defendant’s Exhibit 1, would not tbe plaintiff, tbe trust company, then and there have declared the entire amount secured by tbe mortgage to be due and have instituted then and there proper proceedings at law or equity to assert and protect its rights? * * #
“A. As long as we were receiving tbe net income we wouldn’t ordinarily serve a notice of default.
“Q. You were receiving by virtue of the arrangement with Mrs. Ullman, that’s true, isn’t it?
“A. That is true.”
There is testimony that the property was assessed for $65,730 in 1931. Witness for defendant testified that, in his opinion, the “value of the property on or about December 31, 1931, was considerably in excess of $100,000.” A witness for plaintiff testified that in August, 1938, the property was worth $35,000.
The commissioner filed report of findings of fact and conclusions of law, to which defendant company filed exceptions. The opinion of the court for confirmation of the commissioner’s report provided, in part:
“The Marquette Company contends that it is released from liability because its grantee, then in possession of the premises, was granted an extension after default and without notice to the Marquette Company; that had foreclosure proceeded at that time, the premises would have sold for more on foreclosure; and the defendant company consequently cannot be held for any deficiency.
“The Marquette Company assumed the payment of the mortgage but its grantee, defendant Ullman, did not. On December 1, 1931, the grantee was in default to the extent of a principal payment of $3,000, and in connection with this default, plaintiff wrote a letter which is the foundation of the Marquette Company’s claim that it has been released. The letter is dated December 31, 1931, and reads as follows: * * * [above quoted].
“Counsel for defendants continually refer to this letter as an extension agreement. It does not purport to be such on its face, but rather an effort to cure the default then existing, and it is significant that by reason of the deposit of rentals, this default was cured in a few months.
“At this stage the Marquette Company could not claim to be released from its obligation to pay the mortgage merely because plaintiff brought the mortgage into good standing rather than foreclose and sell. But after the default had been cured, the defendant Ullman continued to deposit the rents, and subsequently became again in default.
“When such subsequent defaults occurred the plaintiff might have declared the whole amount due and have begun foreclosure. Apparently the failure to act in this manner is the real substance of the complaint on the part of the Marquette Company.
“In the light of subsequent conditions in the real estate market, perhaps the plaintiff would have been wise to have foreclosed at once. But the right to declare the whole amount due was an option belonging to plaintiff, and the Marquette Company cannot complain of a failure to exercise the option.
“Nor can the plaintiff’s efforts to collect on the mortgage rather than foreclose at the first opportunity avail the Marquette Company as a release of liability. ’ ’
The decree entered October 25, 1940, confirmed the commissioner’s report; provided for foreclosure and sale of the property; determined the mortgage debt to be $69,385.67, plus interest, and the present value of the property to be $35,000; and decreed defendant Marquette Park Company personally liable for the amount due on the mortgage and for any deficiency resulting from mortgage sale. The decree did not provide for deficiency against defendants Ullman and Wigle.
Defendant Marquette” Park Company appeals, and its contentions are summarized in counsel’s brief, as follows:
“1. It should have been found that a valid extension agreement, based on good consideration, was entered into between plaintiff and defendant Ullman on December 31, 1931, without the knowledge or consent of Marquette, and was performed to the date of institution of this action on March 18, 1938, six days prior to March 24, 1938, when Marquette was first given notice of any default in payment of the mortgage.
“2. It should have been found that on said December 31, 1931, the date that plaintiff had the right to declare the entire then mortgage debt of $51,000 entirely due, and institute foreclosure, the mortgage security was worth approximately twice the amount of the mortgage debt. That by reason of said extension agreement with defendant Ullman, plaintiff then and there took the mortgaged property as its sole security for the debt and released Marquette to the extent of the value of the land as of said December 31, 1931.
“3. It should have been found that through its dealings with said Ullman, plaintiff suffered the mortgage debt of $51,000 existing on said December 31, 1931, to increase to $69,385.67, when foreclosure was finally instituted on March 18, 1938, through accumulation of interest and taxes; and plaintiff suffered the value of the mortgaged security to depreciate from twice the amount of the mortgage debt existing when plaintiff’s right to foreclose first accrued to a point where it was worth about one-half of the mortgage debt, thus giving rise to a prospective deficiency of some $35,000. That by said dealings with said defendant Ullman, its long-silence amounting to laches, and its course of conduct in the premises, plaintiff is estopped from asserting that Marquette is liable to pay the mortgage debt or any deficiency resulting- from sale of the security pursuant to the decree in this cause.”
Defendant company’s first contention is based upon the theory that, when it conveyed the mortgaged property to Mrs. Ullman, who took subject to, but did not assume, the mortgage debt, it became a quasi surety to the extent of the value of the property at the time of the alleged extension agreement on December 31, 1931; that the land became a primary fund for payment of the mortgage debt; that plaintiff and Mrs. Ullman, by entering into the alleged extension agreement, altered the obligation of quasi suretyship which the defendant company had assumed when it conveyed the property to Mrs. Ullman; that such alleged extension agreement between plaintiff and Mrs. Ullman, under the principles of suretyship, discharged defendant company from liability on the mortgage to the extent of the value of the property at the time such agreement was made.
Counsel for defendant company states in his brief:
“Most courts make a fundamental distinction between a situation where a mortgagee gives an extension to a grantee who has assumed and agreed to pay the mortgage, and where the mortgagee gives an extension to a nonassuming grantee who has taken only subject to the mortgage. In the cases where the grantee has assumed the mortgage, it has often been said that he becomes the principal obligor, and his grantor becomes a surety so that impairment of the contract by extension given by the creditor releases the grantor under familiar principles of suretyship. On the other hand, as here, where the grantee has not assumed the mortgage debt, no strict relation of principal and surety can be said to arise since there is no obligation of the grantee to pay the mortgage debt. Hence, a doctrine of quasi suretyship has been developed, granting full, practical relief to the quasi surety.”
Defendant company relies upon the case of Murray v. Marshall, 94 N. Y. 611, 615, 616, in which the court said:
“When the mortgagor in this case sold expressly subject to the mortgage, remaining liable upon Ms bond, he had a right as against his grantee to require that the land should first be exhausted in the payment of the debt. Presumably the amount of the mortgage was deducted from the purchase-price, or at least the transfer was made and accepted in view of the mortgage lien. Seller and buyer both acted upon the understanding that the land bound for the debt should pay the debt as far as it would go, and their contract necessarily implied that agreement. Through the right of subrogation the vendor could secure his safety, and that right could not be invaded with impunity. It was invaded. When the creditor extended the- time of payment by a valid agreement with the grantee, he at once, for the time being, took away the vendor’s original right of subrogation. He suspended its operation beyond the terms of the mortgage. He put upon the mortgagor a new risk not contemplated, and never consented to. The value of the land, and so the amount to go in exoneration of the bond, might prove to be very much less at the end of the extended period than at the original maturity of the debt, and the latter might be increased by an accumulation of interest. The creditor had no right thus to modify or destroy the original right of subrogation. What he did was a conscious violation of this right, for the fact that he dealt with the grantee for an extension of the mortgage shows that he knew of the conveyance, and that it left the land bound in the hands of the grantee. Knowing this he is chargeable with knowledge of the mortgagor’s equitable rights, and meddled with them at his peril. But it does not follow that the vendor was thereby wholly discharged. The grantee stood in the quasi relation of principal debtor only in respect to the land as the primary fund, and to the extent of the value of the land. If that value was less than the mortgage debt, as to the balance he owed no duty or obligation whatever, and as to that the mortgagor stood to the end, as he was at the beginning, the sole principal debtor. From any such balance be was not discharged, and as to that no right of his was in any manner disturbed. The measure of his injury was his right of subrogation, and that necessarily was bounded by the value of the land.”
Other authorities cited by defendant company are: 41 A. L. R. 294, 295; Kazunas v. Wright, 286 Ill. App. 554 (4 N. E. [2d] 118); White v. Augello, 142 Misc. 233 (254 N. Y. Supp. 228); Zastrow v. Knight, 56 S. D. 554 (229 N. W. 925, 72 A. L. R. 379); Wittson v. Englewood Plumbing Supply Company, Inc., 121 N. J. Eq. 323 (189 Atl. 920); North End Savings Bank v. Snow, 197 Mass. 339 (83 N. E. 1099, 125 Am. St. Rep. 368).
The contention of defendant company that the alleged extension agreement between plaintiff and Mrs. Ullman released, and discharged defendant from its assumed liability to pay the mortgage indebtedness is based upon the premise that a valid extension agreement was made. If there was no valid agreement extending the mortgage indebtedness and suspending plaintiff’s right to invoke the acceleration clause of the mortgage and its right to foreclose, then defendant company’s obligation as either surety or quasi surety was not altered, and it would remain obligated for the mortgage debt. Defendant company argues that plaintiff’s letter to Mrs. Ullman, together with the deposit of rentals for several years thereafter as contemplated by such letter, constituted a valid agreement extending the mortgage debt and suspending plaintiff’s rights to invoke acceleration and to foreclose.
The question as to whether or not there was a valid extension agreement»must be determined from the terms of the above-mentioned letter, the terms of the trust mortgage, and the dealings be tween plaintiff and Mrs. Ullman, the nonassuming grantee.
The letter of December 31, 1931, was apparently written by plaintiff in pursuance of a conversation with J. L. Freud, representing Mrs. Ullman, regarding the default in payment of bonds maturing December 1, 1931. Plaintiff’s letter submits a “proposal in connection with curing the default under your bond issue.” The letter then requests Mrs. Ullman to deposit with plaintiff each month the net rents from the property. - It mentions that plaintiff, under the terms of the trust mortgage, had the right to collect the rents, but that “any legal action in this regard would tend to disturb the tenants;” that plaintiff believed such an arrangement for deposit of net rents would be satisfactory to holders of the defaulted bonds and “should be equitable to all concerned.” In pursuance of such letter Mrs. Ullman deposited sufficient funds to cure the default of December 1,1931, and thereafter continued to deposit the net rents with plaintiff.
Under the trust mortgage plaintiff had the right to collect the rents from the property. The mortgage provided, in part:
“As further security for the payment of said indebtedness, * * * the said mortgagor hereby sells, assigns, sets over, and transfers to said trustee, all such rents and profits and arrears of rent * # * as then are or may thereafter be or become due or owing to said mortgagor # * from the tenants * * * which assignment of rents and profits shall run with the land and shall be good and valid as against the mortgagor or those claiming under or through him * * * said trustee may proceed by suit or suits at law or otherwise for the recovery thereof, as it shall deem advisable.”
It is clear that plaintiff, by requesting Mrs. Ullman to deposit the net rents, from the property, was only exercising its rights under the trust mortgage. Plaintiff was endeavoring to cure the then existing default of December 1, 1931, and to protect bondholders by obtaining deposit of the rents.
Plaintiff’s letter did not offer to extend the mortgage indebtedness nor to suspend its option right to invoke the acceleration clause of the mortgage or its right to begin foreclosure. Since plaintiff did not offer to forego its rights under the mortgage, there could have been no acceptance by Mrs. Ullman which would create a valid extension agreement. The fact of forbearance by plaintiff cannot be construed as an agreement to forbear. The letter contained no provision which would have prevented plaintiff from invoking the acceleration clause of the mortgage or which would have prevented it from beginning foreclosure at any time during default. To be discharged from its assumed liability for the mortgage indebtedness, defendant company must establish that a valid and binding extension agreement existed between plaintiff mortgagee and the nonassuming grantee, Mrs. Ullman. Marshall & Ilsley Bank v. Mooney, 205 Mich. 513; Dedrick v. Den Bleyker, 85 Mich. 475; Case v. O’Brien, 66 Mich. 289; Hayes v. Knox, 41 Mich. 529; Davis v. Rider, 5 Mich. 423; Stearns’ Law of Suretyship (4th Ed.), §§ 81, 82; Spencer on Suretyship (1913), §224. The authorities cited by defendant company’s counsel recognize the rule that a valid extension agreement must exist before the assuming grantee, as surety or quasi surety, is discharged.
We conclude that there was no valid extension agreement between plaintiff and the nonassuming grantee, Mrs. Ullman, and, therefore, the' obliga tion of defendant company, as either surety or quasi surety, was not altered, and such defendant continued liable for the assumed mortgage indebtedness and any deficiency resulting from foreclosure sale.
Defendant company further contends that, even though no valid extension agreement existed, plaintiff’s failure to invoke the acceleration clause sooner, to begin foreclosure, and to notify defendant company of defaults constituted laches, which estopped it from asserting that defendant company was liable for the mortgage debt or any deficiency.
The acceleration clause (above quoted) of the mortgage provided that, should, default be made in the payment of principal or interest, and should such default continue for a period of 30 days, “the whole principal sum of said bonds, together with all arrearage of interest thereon, shall, at the option of said trustee, and without notice, become and be due and payable immediately thereafter.” Defendant company assumed the mortgage and was bound by all its terms and provisions. The mortgage imposed no obligation on plaintiff as trustee to invoke the acceleration clause and begin foreclosure when the first default occurred in 1931, nor when any subsequent default occurred prior to the final due date of the mortgage. The optional right to invoke the acceleration clause of the mortgage was for plaintiff’s benefit and was a permissive right. Lowenstein v. Phelan, 17 Neb. 429 (22 N. W. 561); Peyton v. Peyton, 28 Wash. 278 (68 Pac. 757); Hewitt v. Dean, 91 Cal. 5 (27 Pac. 423); Collins v. Nagel, 200 Iowa, 562 (203 F. W. 702); Watson v. Clayton, 230 Ala. 59 (159 South. 481).
The words, “at the option of said trustee,” clearly contemplated the exercise of some discretion by plaintiff trustee. Plaintiff, at the time of the first default in 1931 and subsequent defaults, apparently determined that it was good judgment, and for the protection of bondholders, to accept the deposit of rents collected, rather than to invoke the acceleration clause and begin foreclosure. The defaults occurred during the so-called economic depression, of which we have taken judicial notice. MacNear v. Malow, 282 Mich. 239; Hilliard v. Schram, 285 Mich. 686; Frey v. Farmers & Mechanics Bank, 273 Mich. 284. In view of the terms of the mortgage, we cannot say that plaintiff was not justified in the course it followed.
We cannot overlook the fact that defendant company had assumed and agreed to pay the mortgage debt and could have, at any time, protected itself by paying such debt. There is no testimony that at any time prior to foreclosure defendant company objected to the methods employed by plaintiff, and it might, with some force, be argued that defendant impliedly acquiesced in plaintiff’s method of handling the situation. There was no legal obligation on plaintiff to notify defendant company of each and all of its acts and doings as trustee, so long as it did not, by valid extension agreement or otherwise, affect defendant company’s rights. Under the existing conditions and circumstances plaintiff was not guilty of laches in failing to invoke the acceleration clause of the mortgage sooner and begin foreclosure.
We find no valid reason for releasing defendant company from the obligation which it expressly assumed.
The decree of foreclosure determining defendant Marquette Park Company to be personally liable for the mortgage indebtedness and for any defi ciency resulting from the foreclosure sale is hereby affirmed, with costs to plaintiff.
Chandler, C. J., and Boyles, North, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Butzel, J.
Plaintiff brings mandamus to compel the insurance commissioner to admit plaintiff to do business as an insurance company in Michigan under the provisions of Acts Nos. 71 and 75, Pub. Acts 1941 (Comp. Laws Supp. 1942, §§12312, 12390, Stat. Ann. 1941 Cum. Supp. § 24.91 and § 24.213). Both of these acts were duly enacted by the legislature and, after being enrolled, were approved and signed by the governor on May 12, 1941, and filed in the office of the secretary of State. They contained no provision giving them immediate effect. It had been the custom for many years past for the legislature to complete its regular biennial sessions and adjourn prior to the beginning of the summer, or shortly thereafter, in the year it convened. The 1941 legislature did not adjourn in the early part of July, 1941, but instead took a recess until October 9,1941, so that the two acts in question had not become effective up to that day and would not become effective until 90 days after the final adjournment of the legislature. The acts contained no immediate effect clause. On the 10th day of October, 1941, when the legislature reconvened, it adopted by a two-thirds vote of both the senate and house concurrent resolutions under the terms of which both Acts Nos. 71 and 75, as well as scores of other acts, were given immediate effect. The following day the legislature adjourned. The sole question presented in the instant case is whether prior to the adjournment sine die of the regular session of the legislature, some five months after Acts Nos. 71 and 75 had been enrolled, presented and approved by the governor and deposited with the secretary of State, they can he given immediate effect by concurrent resolutions of the senate and house and without any further action. Shortly after the acts were given immediate effect (now questioned), the plaintiff made application in accordance with the act to the insurance commissioner who, on the advice of the attorney general, held that the acts would not become effective until 90 days after October 11,1941, when the legislature adjourned sine die.
Under article 5, § 36, of the Constitution of 1908, every hill passed by the legislature must he presented to the governor before it becomes a law. If he approves, he shall sign it; if not, he shall return it with his objections. When the hill is presented to the governor for approval or veto, he must consider whether it is to take immediate effect or not. This may become very important as some acts by their very terms are limited to short periods of time, while others may present the question whether 90 days from the time of the adjournment of the legislature should not intervene in order to enable the public to become familiar with and conform to the provisions of the acts.
The question .is one of first impression in this State. However, in Attorney General, ex rel. Zacharias, v. Detroit Board of Education, 154 Mich. 584, the question arose whether the order giving an act immediate effect is part of the act. The question came up on an entirely different issue, hut the majority opinion of the court stated:
“ ‘It is a cardinal rule of statutory construction that full effect shall he given to every part of the act under consideration. Every clause and every word is presumed to have some force and meaning. No portion should he rendered nugatory. If the complainant’s construction were tenable, it would render the immediate effect clause useless. The only possible object the legislature could have had in the giving of immediate effect is to empower the board to increase the salary which theretofore had been under limitation. To no other part of the act as amended is this clause apposite.’ ”
In State, ex rel. Hunzicker, v. Pulliam, 168 Okla. 632 (37 Pac. [2d] 417, 96 A. L. R. 1294), a somewhat similar question arose in regard to the effective date of an ordinance. It was held that after a municipal ordinance had been duly passed by the common council, approved by the mayor, and filed by the city cleric, it had passed beyond the control of the council, and that body did not have the power to reconsider and amend it by adding an emergency clause (giving immediate effect) thereto, without reenacting it, as amended, as a new ordinance. Also, see Katerndahl v. Daugherty, 30 Idaho, 356 (164 Pac. 1017); Smith v. Mitchell, 69 W. Va. 481 (72 S. E. 755, Ann. Cas. 1913 B, 588.) When a bill is presented to the governor, if it is not ordered to take immediate effect, he can know exactly when it will take effect only if the legislature has already adjourned; but he is, and should be, certain that it cannot take effect in less than 90 days.
It is the duty of the legislature to determine whether a measure is sufficiently “necessary for the preservation of the public peace, health or safety” (Const. 1908, art. 5, §21) to be entitled to the privilege of immediate effect. We will not upset such determination except upon showing of a clear abuse of power (Naudzius v. Lahr, 253 Mich. 216 [74 A. L. R. 1189, 30 N. C. C. A. 179]; In re Slush’s Estate, 279 Mich. 19; Todd v. Hull, 288 Mich. 521). By virtue of his veto power, the governor is part of the law-making power (Anderson v. Atwood, 273 Mich. 316); hence it is his legislative duty, as well as that of both houses of the legislature, to consider whether a measure falls' within the categories to which the privilege of immediate effect may be given. The procedure adopted in the instant case deprived bim of the opportunity of exercising such legislative function. For that reason it is unconstitutional.
On the day the governor signed the acts in question (May 12, 1941), the Senate was considering a proposed concurrent resolution sent to it after passage by the House of Representatives, which scheduled final adjournment for June 26, 1941. This was the .only indication the governor had as to when adjournment, and consequently the effective date of the legislation under consideration, would occur. Had adjournment occurred on June 26th, the effective date would have been September 25, 194Í. Subsequent postponements of final adjournment altered all such expectations. Final adjournment did not occur until October 11,1941. The effect of the concurrent resolutions of October 10, 1941, which attempted to give effect as of that date to the acts in question, was, in a sense, to restore the expectations as to their effective date which had been entertained at thé time they had been approved. At least, it may be argued, the concurrent resolution of October 10,1941, does not put the acts in question in effect any sooner than the governor, when signing them, had expected they would take effect. This consideration, however, cannot affect our decision, as, under the rule contended for by petitioners, the legislature could give immediate effect to an act right after the governor signed it without having anticipated such subsequent action by the legislature.
Both the concurrent resolutions of October 10, 1941, and the amendment to Rule No. 12 of the joint rules of the senate and house of representatives under which such resolutions were adopted, are unconstitutional for the reasons indicated.
Other points were raised but in view of our decision are not discussed. The writ shall not issue. The question being a public one, no costs will be allowed.
Chandler, C. J., and Boyles, North, Starr, Wiest, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Kuhn, J.
In this case plaintiff seeks recovery for damages to a shipment of bananas, which it is claimed resulted from the failure of the defendant carrier to promptly notify the plaintiff, the consignee, that the car of bananas had arrived and had been placed on the team track for unloading, so that the plaintiff might have unloaded the car on the night of its arrival instead of the following morning. The case was tried by the circuit judge without a jury and resulted in a judgment being rendered in plaintiff’s favor for $384.68. It is now brought here by writ of error issued prior to the taking effect of Act No. 172 of the Public Acts of 1917.
The findings of the trial judge were filed on February 21, 1917, and judgment was thereon rendered. No requests for amendments to these findings were apparently made or filed by either party, and no exceptions were made, taken or filed to the findings and the judgment filed by the court. On March 7, 1917, the defendant filed a motion for a new trial on the ground that the verdict was not supported by the evidence, was against the weight of the evidence, and was excessive. An order was. entered denying this motion, the concluding paragraph of which stated: “Defendant is herein given exceptions to this ruling, and also to findings of fact.” The record then states:
“Defendant in due time filed exceptions in writing to the order of the court overruling its motion for a new trial and to its reasons therefor.”
The defendant’s counsel urges 13 assignments of error, which relate to claimed errors in the findings of the court, the admission of testimony, the amount of the judgment, and to the refusal to grant the motion for a new trial. No attempt was made to comply with the provisions of Rule No. 45 of the circuit court rules, sections 2, 3 and 4 of which provide as follows:
“Sec. 2. If either party considers the finding not sufficiently full or definite on facts or law, or both, he shall, within ten days after judgment (or such other time as may be granted by the court), propose such amendments to the finding as he may see fit, and serve copies thereof on the adverse party; and such finding shall be settled by the judge who tried the cause, at such time as may be fixed by him for that purpose. The same practice shall prevail in case any party is aggrieved by the refusal or omission to perfect such finding as prevails in cases of exceptions.
“Sec. 3. Within four days after the filing of such completed finding (or such other times as may be allowed by the court), any party aggrieved may briefly, in writing, allege exceptions to the matters of law embodied in such finding, and such exceptions shall be thereafter put in form and settled in the same bill, which may contain the exceptions taken during the trial, and in the same manner with bills of exceptions in other cases.
“Sec. 4. Subject to the statutes, the finding of the facts by the court shall be treated in all respects as a special verdict, and error may be alleged that the same does not support the judgment, as on a special verdict; but no ruling of law embodied in such finding can be reviewed except on exceptions, or on a case made as provided by statute.”
The failure to comply with these provisions of the rule (being then known as Circuit Court Rule No. 26) had the consideration of this court in Walker v. Village of Brooklyn, 184 Mich. 520, and it was there held,—
“The assignments of error based upon exceptions taken, to the denial of a motion for a new trial cannot be considered where, as in the case at bar, there has been an absolute failure to comply with the rules of the court.”
See, also, Federal Audit Co. v. Sawyer, 196 Mich. 566.
Such is the situation here, and the defendant not being properly before the court, the judgment must be, and is, hereby affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
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] |
Moore, J.
The plaintiff brought suit to recover for fire losses claimed to be covered by policies of insurance issued by defendants. On October 30, 1917, defendants pleaded the general issue and gave notice of a number of special defenses. December 18, 1917, defendants moved the court to dismiss the case for reasons stated in various paragraphs contained in the notice of special defenses attached to the plea of the general issue. This motion was overruled. Certiorari is brought to review the action of the trial judge in overruling the motion to dismiss. Upon the oral argument the Chief Justice, for the court, called the attention of the attorneys for the appellants to the method of bringing the litigation at its present stage into this court.
In the appellants’ reply brief is the following:
“The issue is as to the sufficiency as matter of defense of the facts stated in the notice under the amended plea.
“By section 2, chapter 14, of the judicature act (3 Comp. Laws 1915, § 12454), declarations in common use are retained. By section 10, chapter 14 (§ 12462), the only pleading by the defendant is the general issue which, by section 11 (§ 12463), is a demand for a trial. By section 12, chapter 14 (§ 12464), all matter of defense requiring to be specially pleaded, must be stated by way of notice annexed to the general issue.
“By_section 4, chapter 14 (§ 12456), all demurrers, pleas in abatement and pleas to the jurisdiction are abolished. All such questions of demurrer and plea shall now be raised by motion to dismiss, or by notice annexed to the plea, and where such questions are raised by the notice under the plea, the same may be brought on for hearing and determination before trial by either party. If the defect of plaintiff’s declaration appears on the face of the declaration, a defendant moves to dismiss instead of demurring. If the matter of defense requires the statement of facts, such facts are stated in the notice under the general issue and a plaintiff, if he wishes to deny the facts set up in defense, amends his declaration. If he does not think the matter sufficient or if he does not desire to amend, he stands upon his declaration and either he or the defendant may bring the special matter on for hearing and have the judgment of the court as to its sufficiency. * * *
“If the policy and power of attorney in question here had been set forth in the declaration, the defendants could have moved to dismiss. But since the documents which form the contract sued on were not set forth in the declaration, the defendants were required to set them forth in their notice annexed to the general issue.”
Counsel insists that certiorari will lie to review the action of the trial judge in overruling the motion to dismiss. A like situation was presented in the recent case of Pagenkoff v. Insurance Co., 197 Mich. 166.
The construction of section 4, chapter 14, of the judicature act in that opinion is against the contention of appellants’ counsel. We will not repeat here what was there said by Chief Justice Kuhn.
The order overruling the motion to dismiss is affirmed, with costs to the appellee.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Stone, J.
Action on the bond of the defendants. It appears that on May 19, 1914, a contract was made by the plaintiff with the defendants Richard Heystek and Cornelius Vander Vliet, copartners, under the firm name of Heystek & Vander Vliet, for the paving by the latter of South Saginaw street between Fifteenth street and Peer avenue in the city of Flint.
On March 26, 1914, the defendants executed a bond to the city in the penal sum of $9,565.49, containing the following condition:
“The condition of this obligation is such that whereas said Richard Heystek and Cornelius Vander Vliet are about to enter into contract with the city of Flint for the construction of a pavement on S. Saginaw street, commencing at the Fifteenth street intersection of said S. Saginaw street, and extending from thence to the Peer avenue intersection thereof in the city of Flint, Michigan. Now, therefore, if the.said Heystek and Vander Vliet do well and faithfully perform the said contract in all its terms and conditions and shall perform the work as contracted for according to the plans and specifications and detailed drawings in the said contract referred to and made a part thereof, and shall save and keep harmless the said city of Flint from any and all actions brought against the said city of Flint by reason of the construction of said pavement, in any way arising during the performance of said contract, in accordance with the terms and conditions of said contract, then this bond to be null and void; otherwise to remain in full force and effect.”
In the instant suit it was alleged and claimed by the plaintiff, that the defendants did not save and keep harmless the said city from any and all actions brought against the city by reason of the construction of said pavement, in any way arising during the performance of said contract, in that one Sidney Hall, because of the negligence of said Heystek & Vander Vliet in the construction of said pavement, because of their failure to observe the conditions of said contract, and the ordinances of said city, commenced a suit against the said city of Flint in the circuit court for the county of Genesee for personal injuries arising out of the construction of said pavement, and on, to wit, February 10, 1916, recovered a judgment against the city for $1,500 damages and costs of suit to be taxed, which costs were thereafter taxed at $66.85, and which said judgment was thereafter and on April 9, 1917, duly affirmed by the Supreme Court (195 Mich. 638), and the costs in said last-named court were taxed in favor of said Hall and against the city at $38.80, and which said judgment and costs and interest thereon were thereafter paid by said city.
The defendant Chicago Bonding & Surety. Company gave notice under the general issue, among other things, that it would show in defense: That the city of Flint agreed, undertook, and promised to retain and withhold moneys due to the contractors, until all claims against the city or contractors, arising out of any work done by the contractors on the streets of the city had been paid; and that, notwithstanding such promises, the city failed to withhold sums due the contractors, thereby depriving the surety company of the right to have the same applied in payment of the judgment obtained by Hall.
Upon the trial the plaintiff introduced in evidence the bond and contract, notice to the" defendants of the claim of Hall, and of the summons, and the proceed ings in the case of Hall against the city, the facts and circumstances of Hall’s injury, and the payment of that judgment after affirmance in this court. It appeared that at the time the city had notice of the claim of injuries made by Hall, which was on or about December 24, 1914, all sums due defendants Heystek and Vander Vliet under the contract had been fully paid. It appears inferentially that one Darling had also made a claim against the city for personal injuries which arose at the same time that the Hall claim arose; and that defendants Heystek and Vander Vliet had other contracts with the city, and that they had given other similar bonds, with the defendant Chicago Bonding & Surety Company as surety. There was nothing in the contract for paving the street where Hall was injured giving the right to the city to withhold money due, for any purpose.
In its defense the defendant Chicago Bonding & Surety Company offered in evidence certain correpondence between said surety company and W. R. Drury, who signed his letters as assistant city engineer. These letters were objected to upon the ground that Drury had no authority to write them, or to bind the city, and that even the city engineer could not bind it, and the objection was sustained. Those letters, although never received in evidence, are spoken of in the record and briefs as defendants’ exhibits 1, 2, 3 and 4. The letter of July 7, 1915, was in answer to one written by the surety company to the city engineer. Those letters were as follows:
“City of Flint, Michigan, July 7, 1915.
“Chicago Bonding & Surety Co.,
“1520 Dime Bank Bldg.,
“Detroit, Mich.
“Gentlemen: Replying to your letter of the 6th inst. regarding the contracts of Heystek & Vander Vli.et, I have to advise that the following contracts have been completed and the work accepted:
“St. John Street, pavement, Avon to Houran.
“S. Saginaw St. pavement, Fifteenth to Peer.
“First Avenue pavement, Detroit to Garland.
“Harriet St. pavement, P. M. R. R. to Industrial.
“Regarding the contract for the Richfield road pavement, East to Geneseret street, will say that the work is finished and there remains $300.00 to be paid on acceptance of the work.
“On the Avon street pavement, from Richfield road to the river there remains $1,983.70 to be paid. On Avon street pavement, from St. John street to the bridge there remains $1,513.20 to be pfiid.
“Very respectfully,
[Signed] “W. R. Drury,
WRD:W “Ass’t City Engineer.”
“City of Flint, Michigan, September 20, 1915.
“Chicago Bonding & Surety Company,
“Chicago, Illinois.
“Gentlemen: Replying to your letter of the 18th inst. I have to advise that Avon street pavements, from Richfield road to the river, and from St. John street to the bridge, have been completed and accepted and final payment was made Heystek & Vander Vliet, contractors, on July 20th, 1915.
“Very respectfully,
[Signed] “W. R. Í)RURY,
“Ass’t City Engineer.”
“Chicago Bonding & Surety Company,
- “Chicago, Illinois, July 10, 1915.
“Mr. W. R. Drury,
“Assistant City Engineer,
“Flint, Michigan.
“Dear Sir: I have before me your favor of July 7th, addressed to our Detroit, Michigan, office in regard to various paving contracts with Heystek & Vander Vliet in your city, and note that the St. John street pavement, Avon to Huron; South Saginaw street, Fifteenth to Peer; First Ave., Detroit to Garland; Harriett street, P. M. R. R. to industrial, and Richfield road east to Guernsey have been completed.
“We are not quite clear regarding the pavement mentioned in the last paragraph of your letter, i. e., Avon street from Richfield road to river and Avon street from St. John street to the bridge.
“Will you kindly advise if these last two contracts have been completed, and if not what percentage remains to be completed?
“In regard to the various amounts you are retaining we presume you will withhold the payment of these pending the outcome of the suit of Wm. Darling against the city of Flint for $2,000.00 and Sidney Hall against the city of Flint for $2,500.00 now pending in the circuit court of Genesee county for personal injuries received during the construction of one of these pavements.
“Thanking you in advance for a reply, for which we enclose stamped and addressed envelope, I am,
“Very respectfully,
“W. A. Westerfield, Surety Claim Dept.,
“Chicago Bonding & Surety Co.”
“City of Flint, Michigan, July 12, 1915.
“Chicago Bonding & Surety Company,
“Chicago, 111.
“Attention of Mr. H. N. Farrand,
“Supt. of Contract Dept.
“Gentlemen: Replying to your letter of the 10th inst. I have to advise you that Avon street’ pavement, from Richfield road to the river, and from St. Johns street to the bridge are practically completed. There are a few details to be finished by the contractors before the work will be accepted. The payments on the various contracts of Mr. Heystek are being withheld until all of thé damage suits now pending in circuit court have been settled. The Richfield road pavement, from East street to Geneseret street has been finished, but there are a few things to do before the work is accepted.
“Very respectfully,
[Signed] “W. R. Drury,
“Ass’t City Engineer.”
When these letters were offered by said defendant there was a lengthy colloquy between court and counsel, of which the following, during the examination of the city auditor, is a fair synopsis :
“Mr. Fitzgerald: I want to make, then, a complete offer on the record of what we propose to show. We propose to show by this witness along the line he has been examined that on July 10, 1915, the city of Flint had approximately $8,700 in its possession belonging to the contractors Heystek & Vander Vliet, the principals in certain bonds furnished by the surety company to the city of Flint; that the correspondence had between the city of Flint, consisting of exhibits 1, 2, 3, and 4, was had and that the city of Flint received notice that we expected the city of Flint to hold those moneys for our protection because of the fact the city of Flint had notified us that one Hall and also one Darling were both making claims against the city and that the city was claiming that those liabilities, whatever they might amount to, were caused through the negligence of Heystek & Vander Vliet in the performance of their contract.
“The Court: Contract or contracts?
“Mr. Fitzgerald: I say they said contract in that case, but it was through negligence, through something they were responsible for and for which we were liable; We further offer to show that the Chicago Bonding & Surety Company had an assignment of all those moneys, and that the Chicago Bonding & Surety Company at that time had a right to come to the city of Flint and demand that that money be paid over to it, but that it refrained from doing so and was induced not to do so by reason of the promise of the city to hold the same until these damage suits were settled, and we offer exhibits 1, 2, 3 and 4 in evidence for the purpose of showing that fact.
“The Court: Now, Mr. Reporter, it is conceded in this case that the surety company were sureties on the contract or bond given by Heystek & Vander Vliet on a certain paving job on South Saginaw street, from Fifteenth street to Peer avenue.
“And it is also admitted and conceded that at the time that this notice was given, — the claimed notice was given, to the city — that the contractors and the city had settled all matters pertaining to this particular contract.
“Mr. Fitzgerald: I think that is true, yes, sir. Mr. Farley says it is true and I suppose it is.
“The Court: On this question, there is no proof in the case that that man who wrote the letter that you have offered in evidence had any authority from the engineer or from the city of Flint to — I haven’t seen the letter, but I assume I know what they are — to write the letters or to bind the city by it; that the city can only be bound by an act of its common council, or by some one specifically delegated to act for it under given circumstances and conditions. Now, they claim there was an assignment made of all the moneys belonging to the city to these sureties. It is conceded if there were such an assignment, the city had no knowledge of it. Is that right?
“Mr. Fitzgerald: Yes, sir; I don’t say that the city had any notice or any knowledge of our assignment, but I take the position it is not necessary that they should know, in view of the duty they owed to us as surety.
“The Court: That is a question of law. You haven’t got to that yet. What were you going to say, Mr. Farley?
“Mr. Farley: I was going to say in addition to what the court has said, there is no evidence that the letter dated July 10, which is offered in evidence as exhibit 4, was ever called to the attention of any one outside of the witness Drury, the assistant city engineer at that time.
“The Court: Was he assistant or an employee?
“Mr. Farley: He was simply an employee, assistant city engineer, and under the evidence in the case there is no evidence that that letter was ever called to any-body’s attention. So there is not even evidence that the city had notice of any such thing.
“Mr. Fitzgerald: I think I perhaps ought to supplement my offer by saying this, that we offer to show that the first letter that was written by the surety company and out of which this correspondence grew, and which exhibits 1, 2, 3 and 4 follow, that that was written to the city engineer of the city of Flint, and that these exhibits 1, 2, 3 and 4 followed, after that and they show on their face they were a continuous, running correspondence.
“The Court: And that was, as I understand, after the matters between this contractor and the city on this particular pavement had all been settled and paid?
“Mr. Fitzgerald: You are right about that. It is conceded, at least on the strength of Mr. Farley’s statement, it is all paid up. And we want the record to further show that we offer to show that the surety company on the strength of this correspondence with the city relied upon the city to hold these moneys and did so until September, 1915, when it found out that the moneys had not been retáined and that the claims of Hall and Darling had not been settled by the contractors.
“The Court: It is also conceded — you state that the surety company had an assignment of all the moneys belonging to these contractors?
“Mr. Fitzgerald: Yes.
“The Court: But that that knowledge was never communicated to the city?
“Mr. Fitzgerald: No, I don’t claim that, but I claim —what I do claim about it is this, and what I offer to show, perhaps it is more a legal conclusion but I will put it in this way. In asking the city of Flint to withhold these moneys, we were acting in our rights and we were taking control of those moneys under our assignment under the promise of the city of Flint to hold them until the claims of Hall and Darling were settled, and we were relying upon that.
“The Court: That might be true if the city had made the promise.
“Mr. Fitzgerald: Well the notice'to them that they Should do so. I claim on both propositions. It constitutes notice.
“Mr. Farley: There is no notice to them.
“The Court: No, I think I shall have to sustain the objection.
“Mr..Fitzgerald: Well, that view of the court dispenses with any further evidence on the part of the defense. In other words, it goes to our whole defense.”
Whereupon the court directed a verdict and judgment for the plaintiff for $1,737.30 and costs.
The defendant Chicago Bonding & Surety Company has brought the case here for review, and the following errors are assigned:
1. That the court erred in sustaining .plaintiff’s objections to the offer in evidence of exhibits 1, 2, 3, and 4.
2. That the court erred in refusing to permit the defendant to show that there was approximately $3,-700 in the possession of the city of Flint on July 7, 1915, belonging to the contractors Heystek and Vander Vliet.
3. That the court erred in refusing to permit the defendant Chicago Bonding & Surety Company to show that it had an assignment of all moneys due the contractors from the city of Flint.
4. Error in directing a verdict and judgment for the plaintiff.
Although the contract between the city and the contractors is not fully set forth in the record, it is the claim of appellant that it contained the following provision:
“All payments made to second parties (Heystek and Vander Vliet) for labor and material furnished under this contract, shall be in accordance with section 3 of chapter 23 of the charter of the city of Flint.” (Act No. 346, Local Acts 1901.)
That section contains the following provision:
“The city engineer shall, from time to time, make estimates of the amounts earned and payable upon any contract for work done and material furnished, and report the same to the council, and thereupon it shall be the duty of the council to order payment from the proper funds sixty per cent, of the amount so reported.”
Much time was spent in the examination of the witness Drury bearing upon the nature and extent of his authority. Under the charter there is no such officer as assistant engineer. Drury appeared to be an employee of the city. But if it were to be conceded that he possessed all of the authority of the city engineer, he had no authority under the charter to bind the city by the statement contained in the letter, viz.:
“The payments on the various contracts of Mr. Heystek are being withheld until all of the damage suits now pending in circuit court have been settled.”
There was no evidence that the city or the council had any notice or .knowledge of such statement, and the statement could not be held to bind the city to withhold moneys due, or to become due to contractors arising out of other separate matters or contracts.
Counsel for appellant cite Dundas v. City of Lansing, 75 Mich. 499, and quote the following language from the opinion:
“The individual knowledge of officers or agents oi a municipal corporation, who in such capacity have powers or duties conferred upon them with reference to a given matter, is the knowledge of the corporation, and notice to such officers or agents, is notice to the corporation, and the corporation is bound or affected by such knowledge or notice.”
That language was used with reference to notice of a defective cross-walk, given to the alderman of the ward, about six months before the accident. It has no application here where the letters to the city engineer and Drury were not notice of matters to any officers who had powers or' duties conferred upon them with reference to the making of payments to the contractors — powers and duties .resting upon the council only.
Under the charter, the city engineer was required to estimate the amount earned from time to time on public contracts, and report the same to the council, but the council was the sole body having authority to order payment of any sums on any such contracts. It was not shown, nor was any offer made to show, that the council was ever notified by the surety company in respect of any of the matters referred to in these letters, or that the council ever authorized the city engineer, or his assistant, to make any representations in respect of those matters, or that any representations made by either of them, were ever ratified or confirmed by the council.
While it was claimed at the trial that the surety company had an assignment of such funds, no offer was made to show, but on the contrary it was disclaimed, by appellant’s counsel, that any notice of such assignment had ever been given to the city.
An examination of the record shows that in 1914 the contract for the South Saginaw street pavement was made, that the amounts earned thereunder were fully paid to the contractors, and that after that, and on December 24th, the city received notice of a damage claim of Sidney Hall. As appears from defendant’s exhibits offered in evidence, other contracts were made and completed in 1915. We think it clear that no duty or obligation rested on the city in making or carrying out these subsequent contracts, to withhold any moneys from the contractors that might be earned thereafter, unless the city had actual notice of assignment from the contractors to the surety company. Suit was not begun on the claim of Hall until 1915, and the judgment of February 10, 1916, was affirmed in this court in 1917; so the liability of the city was not established, at the time the several amounts earned by the contractors became due and payable, and without notice of an assignment to the surety company, the city had no authority to withhold or retain any money due on such contracts after the completion thereof. We do not understand, from any authorities cited by appellant, that there was any obligation resting on the city to retain such money, arising out of other separate and distinct contracts, pending the establishment of a claim for negligence of the contractors.
We find no error in the record, and the judgment of the. circuit court is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
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] |
Steere, J.
On July 6, 1916, plaintiff suffered an industrial accident while operating a trolley punch press for the Michigan Stamping Company which resulted in the loss of substantially all his right hand except the thumb, incapacitating him for work in the employment at which he was engaged at the time of the injury. It is undisputed that the parties had come under the provisions of the workmen’s compensation act and that plaintiff’s injuries arose out of and in the course of his employment.
Plaintiff claimed compensation for total loss of his hand, to which defendant did not accede, contending his compensation was limited to that provided in the act for the loss of his four fingers. He thereafter made and filed with the industrial accident board a claim for loss of his right hand under the provisions of the compensation act. ■ Upon hearing before a committee of arbitration he was awarded compensation for the loss of four fingers under the terms of section 10, part 2, of the act (2 Comp. Laws 1915, § 5440). Not satisfied with the award, he appealed to the full board, which, on review, modified the award by providing that the compensation awarded by the committee of arbitration for the loss of four fingers should continue for 100 weeks as specified, and if, at the end of the 100 weeks, “he is totally disabled from working in the employment in which he was working at the time of the accident, he shall be paid compensation at the same rate during such total disability”; with a further provision for reduction of this amount in case his disability becomes partial.
The parties stipulated before the arbitration committee that for whatever time plaintiff was entitled to compensation it should be computed on the basis of 27.8 cents per hour and no question is raised by either as to the rate of $7.22 per week fixed by the arbitrators; the evident contention between the parties before the committee of arbitration and the full board on review being whether this stipulated weekly compensation should be continued during the time prescribed by the act for loss of four fingers, or for the loss of a hand.
On appeal to the full board, plaintiff claimed that he “is entitled to compensation for 150 weeks for loss of one hand instead of for 100 weeks, as found by the committee on arbitration.” In this court his counsel say in their brief:
“Appellee contends that he should receive compensation for 150 weeks for the loss of the entire hand, or that the industrial accident board’s order should be affirmed.”
In an opinion made part of the return to the writ of certiorari herein, the board states the situation which the facts presented as follows:
“Applicant exhibited his hand to the committee of arbitration and was also present at the hearing on review before the full board, and the board inspected his hand and took measurements thereof and found that not only were all four fingers taken off as a result of the accident, but practically the whole of the palm or fleshy part of the hand was also removed. He still has the thumb, and technically it may be true that he has "not lost the entire hand. He has lost so much of the hand, however, that when he bends his thumb over .forward there is nothing it can reach. That portion of the palm of the hand which,the thumb would nat urally touch when bent fully forward has been cut away. He has left only a very small portion of the thick portion of the hand below the wrist joint.
“As stated above, he may not technically have lost the entire hand within the meaning of section 10, of part 2, of the workmen’s compensation act, but the board found from the testimony and a careful inspection and examination of the hand, that he has lost substantially the entire usefulness of the hand. The board cannot see that the thumb he has left is of much, if any, practical use to him as far as following any employment is concerned, and believes that for all practical purposes he has lost the entire hand.”
Pointing out that with only the four fingers gone and the palm of the hand otherwise unimpaired the usefulness of that member as a hand, though diminished, would remain, since the thumb, in connection with the full palm, would have a grasping capacity and to a large degree serve the ordinary functions of a hand, it is stated that the question before the board is: “Should compensation be allowed to claimant for 150 weeks for the loss of a hand?” Finding that plaintiff is, under the facts shown, entitled to something more than for the bare loss of four fingers, the board concludes that “if not to compensation for the loss of a hand, then to compensation for disability, in case disability exists after the 100 weeks to be paid for the four fingers expires.”
The undisputed testimony, visualized by a verified photograph returned as an exhibit in the case, fully sustains the board’s findings of fact as to the physical result of the injury, showing the remaining extremity of claimant’s right arm consists of the wrist with the thumb projecting from one side of it, and all the fingers, knuckles, palm and the four metacarpal bones forming its frame, or metacarpus structure, gone. Attached to one side of the wrist, with one less joint than the fingers, its functions specialized for apposition to other portions of the hand, the thumb, left by itself becomes practically useless in manual employment.
In common terms the human hand consists of the palm, fingers and thumb, being in combination peculiarly adapted physiologically to the function of prehension, or grasping, which is their primary service, locomotion and support being of scant importance as contradistinguished from the lower order of animals. In that sense and for such uses plaintiff has lost his right hand.
In section .10, part 2, of the act, is set out a schedule providing compensation for loss of specified members, the disability resulting from which in each ease “shall be deemed to have continued for the period specified, and the compensation so paid for such injury shall be as specified therein.” Compensation is specified for the loss of a thumb and separately for the loss of each finger, aggregating 50 per cent, of the average weekly wages for 100 weeks, the loss of more than one phalange to be considered as the loss of the entire finger or thumb; with the proviso “That in no case shall the amount received for more than one finger exceed the. amount provided in this schedule for the loss of a hand”; or one-half the average weekly wages of 150 weeks.
If we should extend to the facts in this case the liberal construction provided in the schedule that loss of more than one phalange of a finger shall be considered the loss of the entire finger, then by analogy the loss of all the palm and all of the fingers of the hand could by greater impairment and a larger proportion of loss be reasonably considered the loss of the entire hand. If the claimed strict construction urged by defendants is accepted, in no case could the amount awarded for more than one finger exceed in the aggregate 100 weeks and the provision last quoted plainly recognizing a permissible increased discretion ary limit for the loss of more than one finger to 150 weeks, is meaningless. It is a cardinal rule of construction that a meaning shall be given to all parts of a statute where possible.
In the instant case the board found total disability and the undisputed evidence shows that by reason of his injury plaintiff is not only totally but permanently incapacitated for work at the employment he was engaged in at the time of the accident. In practical application to his case the result is the same whether he be awarded compensation for the loss of a hand as he claims, or for the totally disabling loss of all his fingers, taking with them the whole palm of the hand, awarded for 150 weeks under the proviso quoted, being for “more than one finger” and not exceeding “the amount' provided in the schedule for the loss of a hand.” The only indicated meaning or purpose of that proviso is to give the board discretionary power to extend the period of weekly compensation within the limit specified, and such we conclude was the fairly manifest legislative intent.
So construed and limited, the award of the industrial accident board is affirmed, with costs.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Moore, J.
From a judgment in favor of the plaintiff this case is brought here by writ of error. The judge charges the jury in part as follows:
“It appears in this case that the defendant, Dennis Sayers, was a deputy sheriff of this county; that as such deputy sheriff, on the 30th day of August last, he seized a certain piano under a judgment rendered in favor of Cameron Brothers, and against Louis J. LeBlanc. The title to that piano is the issue in this case, and the issue is whether the piano belonged to Louis J. LeBlanc or to the plaintiff, his wife. Now if the piano belonged to Mr. LeBlanc, then the defendant is entitled to a verdict here. If it belonged to Mrs. LeBlanc then she is entitled to a verdict and that is the issue in this case as to who owns the piano.
“It appears that the piano was purchased in 1902; that some notes were given which were signed by Mr. LeBlanc. The circumstances under which the pur chase was made are in dispute, and I charge you that it is the presumption of law that things brought into the house by the husband and by his purchase are presumptively his property. If Mr. LeBlanc merely purchased this piano for the use of his wife to have in the house in the usual course of household affairs, and no more than that, he would be the owner of the piano. He had, however, a right to give it to her, and if he did give it to her at the time of the purchase, then the piano would be hers. It is incumbent upon her to show in this case, by a preponderance of evidence, that her husband did give the piano to her to be her own separate property, to divest him of any title, if he had any title, or to take title direct from the seller to her— at least that it was to be her piano and not his.
“Some claim has been made that Mrs. LeBlanc paid part of the purchase price out of some earnings which it is claimed she made from commissions on the sale of pianos, and in' other ways. I charge you, gentlemen, that, under the evidence here, as she has testified, her earnings and the right thereto were not given to her by her husband; that -her husband was still entitled to her earnings. In other words, gentlemen, a husband is entitled to his wife’s earnings unless he gives them to her, or permits her to work-and keep her own earnings. Consequently under the evidence here, the fact that she paid part of the purchase price would not give her the .title to the piano itself. It may however be taken into consideration by you, as bearing upon the question of whether her husband did, in fact, give her the piano, to be held as her separate property. Now, gentlemen, that is the issue in this case. * * *
“If you find that the plaintiff, Mrs. LeBlanc, is the owner of the piano, .then, of course, your verdict will be merely for the plaintiff. If you find that Mr. LeBlanc is the owner of the piano, then your verdict will be for the defendant.
“Now, the defendant has waived the return of the property. * * * He claims only a lien upon the piano for the amount of the judgment; if you find that Mr.. LeBlanc owns the piano you will render a verdict in favor of the defendant for the sum of $187.06 with interest. * * *
“To repeat, gentlemen, if you find that the piano be longs to Mrs. LeBlanc you will find a verdict in her favor. If you find the piano belonged to Mr. LeBlanc you will then render a verdict in favor of the defendant for the amount of $137.06, together with interest at 5 per cent, per annum from July 31, 1909.”
The defendant claimed a verdict should have been directed in his favor. His brief concludes as follows:
“As the record discloses title to the piano to be in Mr. LeBlanc and liable for his debts, the judgment should be reversed and a judgment entered in this court for defendant for the amount of the judgment against LeBlanc, amounting to $137.06 with interest at five per cent, from July 31, 1909, and costs of both courts.”
The testimony was conflicting, Mrs. LeBlanc testifying one way and her husband another. There was a question of fact to be submitted. It was properly submitted.
The judgment is affirmed, 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.
The plaintiffs William I. Lash-brook and Elsie M. Lashbrook are husband and wife, the other plaintiff their son. Their bill was filed August 2, 1916. Substantially, the following story is told in the bill: William I. Lashbrook owned some land in Wales township, St. Clair county, Michigan. In September, 1901, the land was subject to a mortgage, upon which there was then unpaid some $4,000. He desired to make a division of his real estate between his sons (he had other children), giving to each of his sons Jesse and Harmon 80 acres, and he desired also “to protect himself and the other children against loss in case said division was made.” He consulted the defendant, a banker of Almont, Michigan, with whom he had done business for many years, and in whom he had confidence, and to whom he was not in any manner indebted. Following the conference, and under an arrangement made at the conference, and agreeably with his own wishes, he executed a mortgage upon the land, which was dated September 2, 1901, joined in by his wife, to the defendant to secure the payment of $3,200 and interest at 6 per cent, per annum, according to a promissory note. This instrument was acknowledged on the 5th of September, 1901. He also executed, dated September 3, 1901, a warranty deed to his son Jesse of a portion of the said land, subject to two mortgages, one of them already referred to and the other the one to defendant. He also executed a warranty deed to his son Harmon of a portion of the land, subject to the said two mortgages, both of these deeds being acknowledged September 5, 1901. All three of these instruments were duly recorded. Although her name appears to be signed to the mortgage to defendant, Mrs. Lashbrook never in fact signed it nor authorized anybody to sign it for her and did not know that any such mortgage was in existence for some time. The mortgage to defendant was executed—
“merely for the purpose of protecting the several members of his family and not as an evidence of any indebtedness to Charles R. Ferguson and was so understood and so received by him to be held in trust until such time as your orator, William I. Lashbrook, should desire to have the same discharged when the said Ferguson agrees to discharge the same.
“That although said mortgage and note purports to draw six per cent, interest, no interest has ever been paid or demanded by the said Ferguson of your orators.”
For two years before the filing of the bill, William I. Lashbrook had been applying to defendant to have him discharge the mortgage, and, while the defendant had not absolutely refused to do so, he had advised the plaintiff not to discharge the same from record, and plaintiff has been unable to obtain a discharge of the mortgage. It is prayed that a decree may be entered discharging the mortgage of record and canceling the note. The note is not described in the bill.
Defendant answered, and, admitting the execution of the instruments referred to, asserts that, when the mortgage in question was given, William I. Lashbrook owed him $3,200, evidenced by a note dated August 28, 1900, secured by a chattel mortgage, and that the real estate mortgage referred to in the bill was given for the purpose of securing the indebtedness evidenced by said note, was not to be held in trust, but was a bona, fide mortgage. The defendant also denies that no interest upon the debt has ever been paid or demanded by defendant, but avers the truth to be that he has frequently demanded interest and that on the 16th of March, 1905, $150 was applied on said note and mortgage. He denies that he advised plaintiff not to discharge the same from record, and he says that on the 26th of August, 1916, he commenced foreclosure proceedings by advertisement, which were pending when the answer was filedj sale of the premises being advertised to take place November 25, 1916. Defendant asks for no affirmative relief, but only that the bill of complaint be dismissed. The answer was filed October 27, 1916, and on December 9, 1916, a supplemental bill was filed by plaintiff which takes up the subject of the foreclosure procéedings and charges that on the 25th of November, 1916, under the power of sale contained in said mortgage the under sheriff, acting for the defendant, sold the premises to the said defendant for $6,039.27, and executed a deed of them to the said.defendant. There was an answer to the supplemental bill, which raises no issues not already made manifest, and the cause went to hearing in open court, with the result that a decree was entered in accordance with the prayer of the plaintiff’s bill, the trial court being of opinion that the mortgage was without consideration.
The issue which was tried was án issue of fact purely, and there was testimony which supports the conclusion of the learned trial judge. On the other hand, there is testimony tending to prove that when the real estate mortgage in question was given William I. Lashbrook was indebted to defendant as the result of prior business transactions between them, and that, whether or not Lashbrook owed the defendant $3,200, he did owe him something, payment of which was secured or was additionally secured by the real estate mortgage.
Whether or not there was an existing indebtedness when the real estate mortgage was given can be certainly determined only by an accounting, which neither party has asked for. It is to be observed also that upon defendant’s own showing his _ mortgage should not have been foreclosed by advertisement, but in a court of equity. Upon proper amendment of the pleadings, it may be foreclosed in this suit if any sum is found to be secured by it. The differences between these parties, that is to say, between the plaintiff William I. Lashbrook and the defendant, ought to be settled in this proceeding, and for that purpose the record remanded, with permission to either party, by amendment of the bill or by amendment of the answer, to ask for an accounting, the decree for this purpose being reversed and set aside, without costs to either party.
If, however, neither party has within 60 days after the filing of this opinion signified in writing, filed with the clerk of this court, with proof of service of notice thereof upon the opposite party or parties, a desire to so proceed, the decree of the court below will stand affirmed, with costs to appellees.
Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. Fellows, J., did not sit. | [
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Brooke, J.
(after stating the facts). Have plaintiffs a plain and complete remedy at law? The motion to dismiss as to this ground must be considered as a demurrer to the bill and the demurrer admits all properly pleaded allegations in the bill to be true. Assuming the truth of the allegations contained in the bill it seems to us quite clear that the recovery of damages in the replevin suit would fall far short of affording plaintiffs a complete and adequate remedy. It is averred in the bill that defendant through its exploitation of the picture “Poppy” at a price or rental greatly below normal
“destroys and will destroy plaintiffs’ custom, credits and profits and causes and will cause irreparable injury to plaintiffs which cannot be adequately compensated for in damages.”
Under a situation such as was presented by the bill of complaint injunctive relief is clearly necessary to protect plaintiffs’ rights. Upon the question of accounting, too, the remedy in equity is more complete and better adapted to the ends of justice than the remedy at law. Castle Creek Water Co. v. City of Aspen, 146 Fed. 8, and Butler Bros. Shoe Co. v. Rubber Co., 156 Fed. 1. Where, as in the case at bar, fraud is charged, equity may assume jurisdiction even though plaintiff may have a remedy at law. 16 Cyc. p. 82; Homrich v. Robinson, 221 Mass. 308.
Under this branch of appellant’s motion it is stated that the material issue involved in the suit at bar will be determined in the case of Lewis J. Selznick Enterprises, Inc,, v. Harry I. Garson, et al., Court No. 59,604. Inasmuch as in the bill of complaint filed in that case no. mention is made of the picture “Poppy,” we think the claim without merit. It seems plain to us that plaintiffs are seeking relief in the case at bar which they cannot secure in the other case. This part of the motion amounts to a plea in abatement and should show that the whole relief sought in the second suit is obtainable in the first. 16 Cyc. p. 289.
Under the decision of Lewis J. Selznick Enterprises v. Garson, ante, 106, handed down herewith, this branch of defendant’s motion should be pleaded in bar and is not available upon a motion to dismiss.
Have plaintiffs because of the starting of the re plevin suit elected their remedy and so estopped themselves from maintaining this equitable action? The mere starting of an action at law or a suit in equity does .not constitute an election. 15 Cyc. p. 264. Until election is completed the pursuit of both remedies will not deprive plaintiffs of either. Id.
A consideration of the pleadings in this case, as well as those in its companion case, to which reference has been made, convinces us that the motion to dismiss was properly denied.
Order affirmed, with costs.
Ostrander, C. J., and Bird, Moore, Steere, Stone, and Kuhn, JJ., concurred. Fellows, J., did not sit. | [
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ON REMAND
Before: Sawyer, P.J., and Mackenzie and Neff, JJ.
Per Curiam.
Pursuant to the Michigan Supreme Court’s July 30, 1992, order of remand, we are called upon to give plenary consideration to "the issues of whether the State Board of Canvassers lacks the authority to consider issues other than whether there are sufficient valid signatures to qualify the proposal for certification and to consider the intervening defendants’ claim that the proposal is invalid because of defects other than the signature requirement.” 440 Mich 892 (1992).
Notwithstanding the extensive briefs and appendices, the issues presented are fairly straightforward. The state’s largest automobile insurer, AAA Michigan, created the Automobile Club of Michigan Committee for Lower Rates Now, with headquarters at the same location as the insurance company. This committee then retained a professional organization to circulate initiative petitions designed to amend the Insurance Code in a manner that would ostensibly lower automobile insurance rates for the benefit of the motoring public, but which intervening defendants contend would be in a manner solely beneficial to the economic bottom line of automobile insurance companies, principally aaa.
i
The petitions, as circulated, consist of six pages. The last five pages constitute the text of the proposed legislation. On these pages, there is neither a title to the legislation nor any reference to a title.
On the cover page, however, the opening paragraph sets forth what proponents of the initiative contend should be treated as the title:
A Petition for amending certain provisions of the Michigan Insurance Laws, specifically sections 2109, 2111 and 2111a of Chapter 21, commonly known as the Essential Insurance Act, sections 3101, 3104, 3107, 3109a, 3111, 3115, and 3135 of Chapter 31, commonly known as the No-Fault Insurance Act, section 202 of Chapter 2 and section 3009 of Chapter 30, and for enacting section 3010 of Chapter 30.
What follows is a paragraph purporting to describe the principal features of the legislation proposed to be enacted through the initiative process, which intervening defendants contend is misleading.
Intervening defendants identify two other purported defects. The initiative proposes to make substantial changes to §2111 of the Insurance Code, but the body of only certain affected subsections, not the entire section as rewritten, is included in the "full text of the proposed legislation” on the pages attached to the initiative petition. As á result, intervening defendants claim that § 2111 is not "republished at length” as required by Const 1963, art 4, § 25.
Intervening defendants also contend that a statement in the petition that it is "paid for by Automobile Club of Michigan Committee for Lower Rates Now” constitutes a prohibited form of extraneous material designed to improperly influence registered voters to sign the petition. Thus, intervening defendants claim that "placement of a partisan political description directly on the petition form violates §§ 482 and 544d [of the Election Law ] by incorporating political campaign material on the petition, itself.”
ii
With regard to the requirement that the initiative petition contain a title, Const 1963, art 2, § 9, unlike its predecessor, Const 1908, art 5, § 1, does not go into detail regarding the form of initiative petitions. Instead, the current constitution, in the last sentence of that section, provides that "[t]he Legislature shall implement the provisions of this section.” One limit, however, imposed in the first clause of art 2, § 9, is that the "power of initiative extends only to laws which the Legislature may enact under this constitution.”
In that respect, identical language appeared in Const 1908, art 5, § 1. This language formed the basis for the holding in Leininger v Secretary of State, 316 Mich 644, 648; 26 NW2d 348 (1947), that an initiative petition lacking a statutory title was fatally defective and could not be submitted to the electorate for approval, by virtue of the provision of Const 1908, art 5, § 21 [now Const 1963, art 4, § 24], that "[n]o law shall embrace more than 1 object, which shall be expressed in its title.” The Leininger Court held:
This makes the title an essential part of every law. That this title requirement applies to laws enacted by the initiative, as well as to those enacted by the legislature, there can be no doubt, particularly in view of the provision of section 1 [of art 5], that no law shall be enacted by the initiative that could not, under the Constitution, be enacted by the legislature. . . .
It follows that the petition did not meet the constitutional requirements prerequisite to its transmittal to the legislature. Nor could the legislature, had it been so disposed, have cured the defect in view of the inhibition of section 1 against legislative change or amendment. [Id. at 648-649.]
The Leininger Court noted that it was carving out a very narrow exception to the general rule of Hamilton v Secretary of State, 212 Mich 31; 179 NW 553 (1920), where it was held that substantive constitutional challenges to legislation proposed through the petition process are premature if presented before apparent adoption of such measures at an appropriate general election. Substantive constitutional questions are to be resolved in conjunction with the usual rules of constitutional adjudication, which require, among other things, concrete facts against which to test the measure and a party with standing to raise the constitutional challenge.
If a proposed initiative contains a title, but it is alleged that the title is defective for one of a variety of reasons, the rule of Hamilton supersedes the rule of Leininger, and the courts will decline to consider whether the title fails to , meet the constitutional requirements, thereby invalidating the legislation, before submission of the proposed legislation to the people. Beechnau v Secretary of State, 42 Mich App 328; 201 NW2d 699 (1972).
In Newsome v Bd of State Canvassers, 69 Mich App 725, 730-731; 245 NW2d 374 (1976), this Court said:
It is plaintiffs’ position that the petitions failed constitutionally because if they contain a title, it embraces more than one object. On the authority of Beechnau v Secretary of State, 42 Mich App 328; 201 NW2d 699 (1972), we decline to pass on this question prior to submission of the proposed legislation of [sic] the people. We note parenthetically that the plaintiffs’ reliance upon Leininger v Secretary of State, 316 Mich 644; 26 NW2d 348 (Í947), is misplaced. The holding there rested upon a specific provision of the Constitution of 1908. The Constitution of 1963 retains no such provision. Furthermore, the petition in Leininger contained no title whatsoever. The petition before us is in fact headed by a clear statement of the object of the proposed measure. Moreover, the Supreme Court has specifically disapproved of Leininger, supra, see Kuhn [v Dep’t of Treasury, 384 Mich 378; 183 NW2d 796 (1971).] .
In holding that Leininger is no longer good law, the Newsome panel went too far. In Kuhn v Dep’t of Treasury, 384 Mich 378, 385; 183 NW2d 796 (1971), the Supreme Court said, in relevant part:
Previous decisions of this Court requiring strict compliance with constitutionally mandated procedures for exercise of the powers of initiative and referendum should not be read as limiting the occasions upon which those powers may be exercised. See Leininger v Secretary of State [316 Mich 644; 26 NW2d 348 (1947)]; Scott v Secretary of State [202 Mich 629; 168 NW 709 (1918)]; Thompson v Secretary of State [192 Mich 512; 159 NW 65 (1916)].
In Leininger, the majority did refer to specific language in Const 1908, art 5, § 1, which has no counterpart in the present constitutional initiative provision, namely, "Any initiative or referendum petition may be presented in sections, each section containing a full and correct copy of the title and text of the proposed measure.” However, as the earlier quotations from Leininger established, that was merely one of two alternative bases for the ultimate holding that a petition with no title is defective.
The alternative and still valid reason put forth in Leininger was the limitation in both the Constitutions of 1908 and 1963 that no law may be proposed by initiative that the Legislature may not pass under the constitution, which by reference incorporates the title requirements of Const 1963, art 4, § 24, formerly Const 1908, art 5, § 21.
Four weeks after its decision in Kuhn, the Supreme Court again cited Leininger with apparent agreement with its basic principles:
The careful reader of City of Jackson v Comm’r of Revenue [316 Mich 694, 716-718; 26 NW2d 569 (1947)], will note that the Court applied to its decision that which was urged upon it in several of the briefs of the many counsel participating, namely, the "election-curés-error” doctrine. On page 716 the Court opened this discussion by saying:
"We are not here deciding a case where there is a fatal defect in the petitions, as a result of which the proposition should be withheld from submission to the voters. Such were the situations in the Scott and Leininger cases, supra, [202 Mich 629, and 316 Mich 644]. Here we have a situation where we find there were no such fatal defects, but we are asked to nullify the act of the voters in adopting an amendment.” [Carman v Secretary of State, 384 Mich 443, 455; 185 NW2d 1 (1971).]
Leininger was again cited as recently as Frey v Dep’t of Management & Budget, 429 Mich 315, 323; 414 NW2d 873 (1987), in a manner which, even if Kuhn vitiated Leininger, reaffirms the Leininger doctrine: "In Leininger ... we held that the title-object clause appearing in Const 1908, art 5, § 21 (now art 4, § 24) applied to initiated laws.” Therefore, an initiative petition must provide a title for the proposed legislation. We hold that the opening paragraph, previously quoted, is a title.
In Leininger, the Court held that the first two sections of the proposed legislation, which constituted a statement of purpose of the legislation without adding substance to the codified laws, could not serve as a substitute for a proper and separate title. The Court noted the longstanding historical practice of the Legislature "in Michigan to cause the title of an act to precede and the body of the act to follow the enacting clause. Never has it been the practice to incorporate the title in the body of the act.” 316 Mich 649. The Court then held that the word "title” as here employed in the Constitution "must be deemed to be consonant with the common usage and well known legislative practices in that respect at the time of the Constitution’s adoption.” Id.
In this case, however, the language at the top of the first page of the petition is separate from the body of the legislation. The doctrine of substantial compliance applies to this situation. Carman, supra. The statement that the petition for initiation of legislation is "for amending certain provisions of the Michigan insurance laws, specifically §§ 2109,” is equivalent to the sorts of titles that the Legislature regularly provides for amendatory legislation. If that constitutes a "clear statement of the object of the proposed measure” heading the petition, then it suffices as a title. Newsome, supra.
The intervening defendants object, however, that the title is misleading and inaccurate. It refers, for example, to "certain provisions of the Michigan Insurance Laws,” which intervening defendants claim is a reference to a nonexistent legislative codification. The sections referred to are all part of the "Michigan Insurance Code of 1956.” However, once this Court determines that there is a title, whether the title is sufficient or deficient is a question not to be adjudicated before submission of the proposed legislation to the people. Beechnau, supra.
Intervenors also object that the title is not on the same pages as the body, and point to the boldface petition language claiming "the full text of the proposed legislation” is on the attached pages. This argument misconstrues "text” as encompassing the title and the body of legislation; however, "text” and "body” are synonymous and distinct from "title.” Webster's Third New International Dictionary (1965) includes in the definitions of "text”:
2a: the main body of printed or written matter on a page exclusive of headings, running title, footnotes, illustration, or margins.
ill
The next contention is that the petitions are invalid because of the violation of Const 1963, art 4, § 25 with respect to the proposed amendment of §2111 of the Insurance Code. Article 4, §25 provides:
No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.
These petitions, with respect to § 2111, republish at length only subsections beginning with 6 to the end of the amended section, and thus, on its face, the petitions arguably violate Const 1963, art 4, § 25 in this respect. Is the issue cognizable at this time rather than only after submission to the electorate?
Intervening defendants seem to assume, without citation of relevant supporting authority, that if the initiative is constitutionally defective in this respect, then it is wholly defective and it cannot be submitted to the electorate. However, it seems apparent that the usual doctrines of constitutional adjudication apply. If legislation is unconstitutional in part because one of numerous sections otherwise validly enacted violates Const 1963, art 4, § 25, then it is only that section, and not the entire bill, that is unconstitutional. That was the result achieved in this Court’s decision in Berrien Co v Michigan, 136 Mich App 772, 788-789; 357 NW2d 764 (1984), where this Court found that a portion of an appropriations bill violated the reenactment and publication requirements of art 4, §25. Accordingly, that portion of the appropriations act was deemed unconstitutional; the entire act was not, however, stricken as unconstitutional.
This result is consistent not only with judicially developed principles of constitutional law, but with legislative codification of those principles as set forth in MCL 8.5; MSA 2.216:
In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.
Thus, if this initiative legislation had been enacted by the Legislature, this Court might declare that § 2111 is invalid as being in violation of art 4, § 25, thus reinstating the preamendment version of § 2111, the attempted amendment consequently being a nullity. That would not preclude amendment of any other portion of the Insurance Code, by this or other legislation.
Accordingly, this alleged defect does not warrant precluding submission of the initiative to the electorate, just as this Court would not be warranted in enjoining the Legislature from adopting a bill that contained such a defect. The time to consider whether to declare the affected portion invalid is after its adoption.
IV
Lastly, intervening defendants contend that the description of the proponent on the face of the petition as the "Automobile Club of Michigan Committee for Lower Rates Now” somehow violates §§482 and 544d of the Election Law. A reading of the two sections fails to reveal any language addressing a question of this kind.
The "tear sheet” part of the initiative petition, that part headed by "lower rates now!” in inch-high upper case letters, does not render the petitions invalid as somehow being not in the "form prescribed by the Secretary of State.” Council About Parochiaid v Secretary of State, 403 Mich 396; 270 NW2d 1 (1978). The identification of the proponents of initiative legislation is not specifically prohibited by §§ 482 and 544d.
v
Accordingly, we conclude that, while the Board of State Canvassers possesses the authority to consider questions of form, and thus "issues other than whether there are sufficient valid signatures to qualify the proposal for certification,” the intervenors’ claim' that the proposal is invalid because of defects other than the signature requirement is either premature or without substantive merit. We note, however, that what we decide is only that the petition is facially adequate in form to be submitted to the electorate. We express no opinion about the constitutional sufficiency of the title, the question of compliance with Const 1963, art 4, § 25, or the wisdom of the proposal.
It should be noted that the Attorney General, although disavowing any position on intervening defendants’ substantive challenges, asks this Court to consider whether the statutory timetable should be judicially revised to assure that this initiative proposal can be submitted at the November 1992 general election. We decline to do so because it is not within the purview of the Supreme Court’s order of remand. .
MCL 168.482,168.544d; MSA 6.1482, 6.1544(4).
The cited cases deal with the detailed procedures set forth in the 1908 Constitution, as amended, for the exercise of the powers of initiative and referendum. Michigan Const 1908, art 5, § 1. The present Constitution largely eliminates such procedural detail. Michigan Const 1963, art 2, § 9. See the Convention Comments following the section.
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Holbrook, Jr., P.J.
Plaintiff filed an action in the Branch Circuit Court against defendant for no-fault benefits after an automobile accident rendered her a paraplegic. In Docket No. 130815, defendant appeals as of right a June 26, 1990, judgment awarding plaintiff $24,527, which is the purchase price of a van modified for use by a person in a wheelchair, as well as documented mileage for the use of the van. In Docket No. 133019, plaintiff appeals as of right a September 6, 1990, order denying the imposition of penalty interest on the benefits under MCL 500.3142; MSA 24.13142. This Court consolidated these appeals by order dated November 8, 1990.
On April 28, 1988, plaintiff was a passenger in an automobile that was struck by a truck. At that time, defendant was plaintiff’s no-fault carrier. The accident rendered plaintiff a paraplegic. She is presently confined to a wheelchair. Plaintiff requested that defendant purchase a van modified for use by a person in a wheelchair, but defendant refused, offering instead to pay for the renovation of a van and mileage. Plaintiff then purchased a van modified for use by a person in a wheelchair at a cost of $24,527.
Following a bench trial, the circuit court held that the purchase price of the modified van was a reasonable and necessary expense under the personal injury protection benefits provisions of the no-fault act, MCL 500.3107(a); MSA 24.13107(a). The court reasoned that the van was necessary for plaintiff to lead as full and complete a life as possible given her physical limitations. The court noted that the ambulance service provided by the county would provide only medical transportation. Further, the court found that the public transportation system was geographically limited to the county.
After the court entered the order of judgment, plaintiff filed a bill of costs, which included $4,565.31 in no-fault penalty interest. The trial court denied the request for penalty interest. The court reasoned that the primary obligation under the no-fault act was the immediate payment of medical costs, and that any carrier refusing to reasonably and promptly pay those costs runs the risk of the statutory penalty interest. Because the amount sought by plaintiff arose from defendant’s refusal to purchase the van and not a refusal to pay medical costs, the court refused to impose the statutory penalty interest.
Defendant argues on appeal that it is not liable for the purchase price of the van and a mileage fee when there is alternative transportation available for plaintiff. Defendant contends that the van is primarily used by plaintiff’s family for personal use rather than for plaintiff’s medical needs. On the other hand, plaintiff argues that a van is reasonably necessary for her care and recovery. She implores us to read the statute liberally to reach its intended result of providing relief for her injury. According to plaintiff, providing transportation for her daily requirements is defendant’s responsibility under the no-fault act.
The payment of personal injury protection benefits under the no-fault act includes payment of the following:
Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation. [MCL 500.3107(a); MSA 24.13107(a).]
Three factors must be met for an item to be considered an "allowable expense” under the statute: (1) the charge must be reasonable; (2) the expense must be reasonably necessary; and (3) the expense must be incurred. Nasser v Auto Club Ins Ass'n, 435 Mich 33, 50; 457 NW2d 637 (1990), citing Manley v DAIIE, 425 Mich 140, 169; 388 NW2d 216 (1986); Moghis v Citizens Ins Co of America, 187 Mich App 245, 247; 466 NW2d 290 (1991). The burden of proof regarding whether a particular expense is reasonable and necessary lies with the plaintiff. Nasser, pp 49-50. Whether a van modified for use by a paraplegic is an allowable expense is an issue of first impression.
In Sharp v Preferred Risk Mutual Ins Co, 142 Mich App 499, 510-512; 370 NW2d 619 (1985), this Court held that rental expenses were allowable expenses under the no-fault act. The trial court in Sharp had held that the plaintiff was entitled to the difference between what apartment rent would cost him if he were uninjured and the more expensive apartments he actually rented. Id., p 510. This Court reversed, ruling that the trial court had construed the rule of law in Manley v DAIIE, 127 Mich App 444; 339 NW2d 205 (1983), rev’d 425 Mich 140; 388 NW2d 216 (1986), too narrowly. The Court in Sharp concluded that as long as larger and better equipped housing was required for the injured person than would be required for the uninjured person, the full cost was an allowable expense. 142 Mich App 511.
In this case, the cost of the van was reasonable, and obviously the expense was incurred. We also find that the van was reasonably necessary. Transportation is as necessary for an uninjured person as for an injured person. However, the modified van is necessary in this case given the limited availability of alternative means of transportation. The ambulance service is limited to Branch County, traveling outside the county two or three times a week. Although this service is available twenty-four hours a day, seven days a week, advance notice is preferred for clients who, like plaintiff, reside more than five miles from town. Moreover, because the ambulance service is the only one in the county, transportation could be delayed or unavailable because of medical emergencies. The local transit authority provides door-to-door service to clients who make advance reservations, but it is unavailable during evenings. The van allows plaintiff to travel outside the county for medical purposes and vacations. In addition, the van was reasonably necessary according to plaintiff’s treating physician. He testified that when he discharged plaintiff, one of the requirements was that plaintiff use a van for her transportation, allowing her the independence to go to work. Under these circumstances, we find that the modified van is an allowable expense.
We also conclude that the trial court erred in ordering defendant to pay for all of the van’s documented mileage. Mileage for personal use is as necessary for an injured person as for an uninjured person. However, we do consider mileage incurred for medical treatment an allowable expense. Accordingly, we remand to the trial court to determine the travel expenses actually incurred for the purpose of obtaining medical treatment. See Neumann v State Farm Mutual Automobile Ins Co, 180 Mich App. 479, 486; 447 NW2d 786 (1989); Swantek v Automobile Club of Michigan Ins Group, 118 Mich App 807, 809-810; 325 NW2d 588 (1982).
Finally, we agree with plaintiff that she is entitled, under MCL 500.3142(3); MSA 24.13142(3), to interest on the award of personal injury protection benefits. Penalty interest must be assessed against a no-fault insurer if the insurer refused to pay benefits and is later determined to be liable, irrespective of the insurer’s good faith in not promptly paying the benefits. Clute v General Accident Assurance Co of Canada, 179 Mich App 527, 539; 446 NW2d 839 (1989); Bach v State Farm Mutual Automobile Ins Co, 137 Mich App 128, 131-132; 357 NW2d 325 (1984).
Defendant, relying upon Kreighbaum v Automobile Club Ins Ass’n, 170 Mich App 583; 428 NW2d 718 (1988), argues that the trial court correctly refused to award penalty interest because defendant reasonably believed that the benefit was not payable. The plaintiff in Kreighbaum sought penalty interest, as well as attorney fees and judgment interest, under the no-fault act. The Court in Kreighbaum denied the request, citing Joiner v Michigan Mutual Ins Co, 137 Mich App 464, 479; 357 NW2d 875 (1984). However, when Joiner again came before this Court on this specific issue, this Court held that penalty interest is triggered when the personal injury protection benefits become overdue with no exception for the good faith of the insurer in denying liability. Joiner v Michigan Mutual Ins Co, 161 Mich App 285, 292; 409 NW2d 808 (1987). Consequently, an insurer’s good faith in withholding payment of benefits is relevant in awarding attorney fees under the act, but is irrelevant to liability under the penalty interest statute. Grossheim v Associated Truck Lines, Inc, 181 Mich App 712, 715-716; 450 NW2d 40 (1989); Bloemsma v Auto Club Ins Ass’n, 174 Mich App 692, 698; 436 NW2d 442 (1989), (After Remand), 190 Mich App 686; 476 NW2d 487 (1991); Bach, p 132. On remand, the trial court shall determine the amount of penalty interest due plaintiff.
The trial court’s decision regarding its order granting plaintiff the cost of the modified van is affirmed. We vacate that part of its decision ordering defendant to pay for all of the van’s documented mileage, and remand for further proceedings concerning the issue of penalty interest. We do not retain jurisdiction.
Affirmed in part, reversed in part, and remanded.
Marilyn Kelly, J., concurred. | [
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Per Curiam.
In this dog-bite case, plaintiffs appeal as of right a circuit court order granting defendants’ motion for summary disposition of plaintiffs’ strict liability claim. We affirm.
Plaintiffs’ complaint alleged that ten-year-old Bradley Alvin was lawfully on defendants’ premises when he was bitten by defendants’ dog. Bradley was playing with friends at the Hoilman residence, which is next door to defendants’ residence. Defendants’ house had a back yard that was enclosed by a fence. At the , request of one of his playmates, who did not live at the Hoilman residence, Bradley climbed the fence and entered defendants’ back yard in order to retrieve a ball. As Bradley climbed to the top of the fence on his way back to the Hoilman residence, defendants’ dog bit him on the leg.
Plaintiffs sued defendants, alleging causes of action under Michigan’s dog-bite statute, MCL 287.351; MSA 12.544, and Michigan’s leash law, MCL 287.262; MSA 12.512. The latter claim was dismissed by stipulation of the parties. Defendants filed a motion for summary disposition under MCR 2.116(0(10), claiming that there was no question of material fact regarding Bradley’s status as a trespasser at the time he was bitten. Plaintiffs argued that Bradley was an implied licensee. The trial court concluded as a matter of law that Bradley was a trespasser and granted defendants’ motion.
The statute involved, MCL 287.351; MSA 12.544, as amended by 1988 PA 142, provides:
(1) If a dog bites a person, without provocation while the person is on public property, or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.
(2) A person is lawfully on the private property of the owner of the dog within the meaning of this act if the person is on the owner’s property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or if the person is on the owner’s property as an invitee or licensee of the person lawfully in possession of the property unless said person has gained lawful entry upon the premises for the purpose of an unlawful or criminal act.
Although the statute does not specifically make provisions for "implied licensees,” the plain meaning and application of the statute requires plaintiffs to prove that Bradley was either an invitee or a licensee, expressed or implied, to fall within the purview of protection created by this statute. Cox v Hayes, 34 Mich App 527, 531; 192 NW2d 68 (1971). A licensee has been defined as "a person who enters on or uses another’s premises with the express or implied permission of the owner or person in control thereof.” Id., at 532. Permission may be implied where the owner acquiesces in the known, customary use of property by the public. Thone v Nicholson, 84 Mich App 538, 544; 269 NW2d 665 (1978).
Plaintiffs offered no evidence to rebut William Simpson’s claim that he never gave Bradley permission to enter his yard. Under the circumstances herein, permission cannot be implied. To the contrary, it is clear from the statements in Bradley’s deposition that he knew that he was trespassing on defendants’ property and did not have permission from defendants, either express or implied, to enter their property. Barbara Hoilman’s averments in her affidavit that her children had permission on prior occasions to enter defendants’ property to retrieve balls, and that in her opinion such acts do not constitute a trespass, do not create a factual question regarding Bradley.
Giving the benefit of reasonable doubt to plaintiffs, we conclude that no record could be developed that would leave open an issue upon which reasonable minds could differ. Farm Bureau Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1985). Consequently, the trial court properly granted summary disposition for defendants.
Affirmed._
In Cox, this Court held that the trial court erred in concluding that the plaintiff, a three-year-old deaf-mute, could not be an implied licensee of defendants. The evidence revealed that the only fence separating the chained dog’s area from the property around it was a fence that ran along the property line between the defendants’ and the plaintiff’s lots. The plaintiff frequently played with the defendants’ daughter in the defendants’ yard at the defendants’ daughter’s invitation. On the day of the accident, the plaintiff had been playing in the defendants’ front yard before she wandered into the back yard.
Plaintiffs’ second issue is premised upon a finding that Bradley was a licensee. In light of our conclusion, we need not address this issue. | [
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Connor, J.
Plaintiff appeals by leave granted from a circuit court affirmance of a district court grant of summary disposition for defendant of plaintiff’s complaint for first-party no-fault insurance benefits, MCR 2.116(0(10). We affirm.
In granting leave, we ordered the parties to address the following issue:
Under § 3107 of the Insurance Code [MCL 500.3107; MSA 24.13107], is an insured’s right to personal protection insurance benefits for otherwise reasonably necessary products, services, and accommodations for the injured person’s care, recovery or rehabilitation, based on otherwise reasonable charges, contingent on those products, services or accommodations being furnished by licensed health care providers?
The facts in this case are generally not in controversy. Plaintiff suffered injuries in an automobile accident and was referred by her treating physicians to Deborah Lincoln, a licensed registered nurse who practices acupuncture. The acupuncture has been beneficial to plaintiff in the treatment of her injuries, but defendant refused to pay for the services rendered by Lincoln for the reason that Lincoln is not licensed to practice acupuncture in Michigan. Defendant has otherwise paid for plaintiffs medical expenses and indicated that it would pay for acupuncture treatments as recommended by plaintiffs physicians, but that it would only pay for treatments from licensed acupuncturists, or a person acting under the supervision of a medical doctor, as defined by MCL 333.16109(2); MSA 14.15(16109X2).
Lincoln practices on her own and is self-employed, but shares office space with two physicians, neither of whom are trained to perform acupuncture. One of the physicians referred plaintiff to Lincoln. Plaintiffs other physicians, who were involved in the referral, also are not trained in acupuncture.
Lincoln takes only patients who are referred by physicians and uses the doctors’ diagnoses in determining how to treat patients. However, Lincoln independently decides where to place needles, how many treatments are required initially, and determines protocol. The referring physicians stay in contact with Lincoln by telephone or correspondence regarding the progress of treatment, but are not physically present during the procedures.
Defendant moved for summary disposition on the ground that it did not have to pay benefits for Lincoln’s services because she was neither a physician nor rendered the services while acting under the supervision of a physician and therefore she was operating as an unlicensed medical care provider. The trial court agreed with defendant and granted summary disposition. The circuit court affirmed.
A no-fault insurer is liable only to pay no-fault medical benefits for medical treatment that meets the requirements of the no-fault act, MCL 500.3105; MSA 24.13105. A claimant who seeks to hold an insurer liable for no-fault medical benefits under MCL 500.3107(a); MSA 24.13107(a) has the burden of proving that the expense was reasonably necessary, the charge was reasonable, and the expense was incurred. Nasser v Auto Club Ins Ass’n, 435 Mich 33, 49-50; 457 NW2d 637 (1990).
MCL 500.3107; MSA 24.13107 grants personal protection insurance benefits for medical expenses as follows:
(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation. . . .
At issue is whether this section should be read to require that the medical expenses incurred be provided by a lawfully licensed practitioner, even if the service is provided at a treating physician’s recommendation. Our decision depends upon the Legislature’s intent. Kirksey v Manitoba Public Ins Corp, 191 Mich App 12, 16; 477 NW2d 442 (1991).
Defendant argues that § 3107(a) must be read in conjunction with MCL 500.3157; MSA 24.13157. We agree. In order to give effect to the entire enactment, under the rules of statutory construction, we must read § 3107(a) in conjunction with MCL 500.3157; MSA 24.13157. Guitar v Bieniek, 402 Mich 152, 158; 262 NW2d 9 (1978). That statute provides as follows:
A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for an accidental bodily injury covered by personal protection insurance . . . may charge a reasonable amount for the products, services and accommodations rendered. The charge shall not exceed the amount the person or institution customarily charges for like products, services and accommodations in cases not involving insurance. [Emphasis added.]
Although it is not clear from a reading of § 3107(a) whether an insurer must pay for medical expenses incurred in treatment by an unlicensed provider, reading the no-fault act as a whole and MCL 500.3157; MSA 24.13157 specifically, we believe it is clear that the Legislature intended that only treatment lawfully rendered, including being in compliance with licensing requirements, is subject to payment as a no-fault benefit. In Attorney General v Raguckas, 84 Mich App 618, 626; 270 NW2d 665 (1978), the Court held that acupuncture is the practice of medicine or osteopathy. The practice of medicine or the administering of medical treatment can be lawfully performed only by licensed physicians. MCL 333.16294; MSA 14.15(16294). Consequently, unless acupuncture is administered by a licensed physician, it is not lawfully rendered. If the treatment was not lawfully rendered, it is not a no-fault benefit and payment for it is not reimburseable. We note that other jurisdictions have reached similar results. See Pavelic v Nationwide Ins, 352 Pa Super 11, 13-14; 506 A2d 1310 (1986); Leonard v Preferred Risk Mutual Ins Co, 247 Ga 574, 576; 277 SE2d 675 (1981).
Plaintiff has also argued on appeal that, as a registered nurse, Lincoln could provide acupuncture consistent with her licensing as a registered nurse, which includes the treatment and care of patients, as provided in MCL 333.17201; MSA 14.15(17201). We disagree. Michigan has not yet recognized the independent licensing of acupuncturists. It has been held that only licensed physicians can perform acupuncture because it is a surgical procedure and the risks involved are too great to allow nonphysicians to engage in the practice. Raguckas, supra, p 626. Consequently, in the absence of specific legislation providing for the independent licensing of acupuncturists, we do not believe a registered nurse may independently practice acupuncture as part of the care or treatment rendered to patients.
The only possible exception provided by statute is when a licensed physician supervises another individual performing acupuncture. MCL 333.16109(2); MSA 14.15(16109X2) defines what is required for such supervisory responsibilities:
(2) "Supervision” means the overseeing of or participation in the work of another individual by a health professional licensed under this article in circumstances where at least all of the following conditions exist:
(a) The continuous availability of direct communication in person or by radio, telephone, or telecommunication between the supervised individual and a licensed health professional.
(b) The availability of a licensed health professional on a regularly scheduled basis to review the practice of the supervised individual, to provide consultation to the supervised individual, to review records, and to further educate the supervised individual in the performance of the individual’s functions.
(c) The provision by the licensed supervising health professional of predetermined procedures and drug protocol.
In this case, there was no supervision of Lincoln by someone who was licensed as a physician and also trained or knowledgeable about acupuncture procedures. Therefore, we believe the lower courts correctly granted summary disposition for the reason that there was no genuine issue of material fact that defendant did not have to pay for Lincoln’s services.
Affirmed.
MCL 500.3107(a); MSA 24.13107(a) was amended and redesignated MCL 500.3107(l)(a); MSA 24.13107(l)(a), effective January 1, 1992.
Making plaintiff and other insureds liable for the costs of medical care provided by unlicensed individuals may appear harsh. However, a remedy was suggested by the Supreme Court in Nasser, supra, p 55, n 10, wherein the Court held that a plaintiff should not have to pay for services rendered by an unlicensed practitioner.
But see MCL 333.16215(2); MSA 14.15(16215X2), as amended by 1990 PA 279, effective March 28, 1991. | [
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Per Curiam.
This is an appeal as of right from a circuit court decision affirming respondent’s refusal to lift sanctions imposed on petitioner for noncooperation in identifying the father of her child. We reverse.
Petitioner became pregnant at age seventeen. She delivered a baby girl on September 21, 1982. Both started receiving aid to families with dependent children (afdc) benefits.
In October of 1983, at the request of respondent Department of Social Services, petitioner, her child, and the putative father submitted to a blood test to determine paternity. The test conclusively excluded the man named by petitioner from being the child’s father.
After receiving the test results, petitioner continued to name the same man as the father of her child. In May of 1984, petitioner’s afdc benefits were cut to exclude benefits for her individual needs as a sanction for what respondent determined was her refusal to cooperate in identifying the father of her child. Her child’s benefits were not cut.
Although she received notice of the sanction, petitioner did not challenge it until 1989, when she requested a hearing. According to respondent, petitioner could have the sanction lifted at any time by identifying the child’s father.
Inexplicably, petitioner does not contend that the test results must be erroneous and has apparently not demanded a re-test. She argues, instead, that the blood test cannot be considered conclusive evidence of noncooperation. She contends that she was a virgin before she slept with the putative father and that he was her only sexual partner around the time of the child’s conception.
Review of final administrative decisions "shall include, as a minimum,” whether they are "authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.” Const 1963, art 6, § 28. The Administrative Procedures Act requires administrative decisions to be set aside "if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following”:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of the agency.
(c) Made upon unlawful procedure resulting in material prejudice to a party.
(d) Not supported by competent, material and substantial evidence on the whole record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
(f) Affected by other substantial and material error of law. [MCL 24.306(1); MSA 3.560(206)(1).]
The substantial evidence test requires that a decision be supported by "evidence which a reasoning mind would accept as sufficient to support a conclusion. '[Substantial evidence] consists of more than a mere scintilla . . . but may be somewhat less than a preponderance’ of the evidence.” Soto v Director, Michigan Dep’t of Social Services, 73 Mich App 263, 271; 251 NW2d 292 (1977) (quoting federal cases). "The . . . findings of the administrative tribunal will ordinarily be upheld.” "[I]t is not the Court’s function to resolve conflicts in the evidence or to pass on the credibility of the witnesses.” Id. at 272. Where there is sufficient evidence, the reviewing court—including the circuit court—must not substitute its discretion for that of the administrative tribunal even if the court might have reached a different result in its place. Murphy v Oakland Co Dep’t of Health, 95 Mich App 337, 339-340; 290 NW2d 139 (1980).
The apdc program was established by Congress under the Social Security Act. The program is financed largely by the federal government, with state matching funds, but is administered by the state. See King v Smith, 392 US 309, 316; 88 S Ct 2128; 20 L Ed 2d 1118 (1968). Participating states are required to submit plans implementing the apdc program for the approval of the Secretary of the Department of Health and Human Services. 42 USC 602(b); see also King, supra at 316.
The Social Security Act set out several provisions that must be included in the state apdc plan, including that "as a condition of eligibility for aid, each applicant or recipient will be required to cooperate with the State ... in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed.” 42 USC 602 (a) (26)(B)(i); see also 45 CFR 232.12(a)(1) and (2). The plan must also "specify that cooperate includes . . . [providing information, or attesting to the lack of information, under penalty of perjury.” 45 CFR 232.12(b)(3).
Respondent has implemented the federal requirements through various manuals. One of these manuals provides that cooperation includes identifying and helping to locate the absent parent and "taking any actions needed to establish paternity and obtain child support (e.g., testifying at hearings or obtaining blood tests).” See dss, Program Eligibility Manual, PPB 85-12, Item 255, pp 3-4 (July 30, 1985).
Respondent has the burden of proving noncooperation. See dss, Administrative Hearings Handbook, ch VII, § A. To do so, respondent must show both that the mother failed to provide requested information and also "[t]hat she knew the requested information.” Id. "If the mother honestly believes that the father is the man she has named, her answer is cooperative even if another man is the father.” Id., § B (emphasis added).
There are no published decisions addressing what constitutes noncooperation. There are, however, at least four unpublished decisions of this Court that, although nonbinding under MCR 7.215(C), are 'helpful in resolving this question.
In Karczewski v DSS, an unpublished opinion per curiam of this Court, decided December 1, 1988 (Docket No. 99945), a finding of noncooperation was reversed where the mother swore that she could not identify the father of her child because she had had sexual relations with several men, none of whom she could name, around the time of conception. This Court found that, because there was no evidence that the mother knew the father’s identity and was refusing to provide that information, the finding of noncooperation was unsupported by the record.
In Myers v DSS, another unpublished opinion per curiam of this Court, decided July 27, 1989 (Docket No. 108264), a finding of noncooperation was reversed where the man identified by the mother as the father of her child could not be found. Again, this Court found that there had been no evidence presented by the dss that the mother had any information regarding the putative father that she was refusing to provide.
There are two unpublished cases involving noncooperation in light of blood tests. These two cases are in conflict.
In Cash v DSS, an unpublished opinion per curiam of this Court, decided August 22, 1991 (Docket No. 115662), a finding of noncooperation was reversed where the man consistently named as the father was excluded by a blood test. This Court found that the dss had presented no evidence that the mother had information that she was withholding.
The opposite result was reached in Hines v DSS, unpublished opinion per curiam of this Court, decided July 13, 1987 (Docket No. 94634). A panel of this Court found that the administrative tribunal was justified in relying on the blood test results as evidence of noncooperation.
We believe that Cash represents the better-reasoned view. Accord R K v Dep’t of Human Services, 215 NJ Super 342; 521 A2d 1319 (1987); Atkinson v Ledbetter, 183 Ga App 739; 360 SE2d 66 (1987); see also Karczewski, supra; Myers, supra.
In this case, petitioner has consistently named one man as the father of her baby. There was absolutely no evidence presented below that petitioner possessed information that she was refusing to disclose. She candidly admitted that she could not explain the results of the blood test. In effect, petitioner did attest to a lack of any further information, under oath and under penalty of perjury.
The test results were admitted by the administrative tribunal with no foundational testimony regarding accuracy, chain of custody, and so forth. See Burnside v Green, 171 Mich App 421, 425; 431 NW2d 62 (1988). The hearing officer relied on the test results to conclude that petitioner must be lying or withholding information, and affirmed the sanction imposed by respondent. He did not evaluate petitioner’s credibility on the basis of other evidence of minor inconsistencies in her story, including whether she was living with the putative father at the time of conception and how many times they had had intercourse. The possibility that the test results may have been wrong, that petitioner’s memory was faulty, or that she might be suffering from delusions was not investigated or discussed.
While it is possible that, in some circumstances, a blood test may be conclusive with regard to the issue of paternity—a question that we do not decide—it cannot be deemed conclusive with regard to the issue of petitioner’s good faith. Even respondent’s own manuals recognize that the "honesty” of the mother’s belief is crucial in finding noncooperation. See dss, Administrative Hearings Handbook, ch VII, §B. Further, under the federal regulations governing the program, cooperation includes "attesting to the lack of information, under penalty of perjury.” 45 CFR 232.12(b) (3). Therefore, a mother who honestly asserts, under oath, that she has no further information regarding the child’s father cannot be sanctioned for noncooperation solely on the basis of adverse blood test results.
Where, as in this case, there is no evidence that the mother knew more than she was disclosing, a finding of noncooperation based solely on blood test results is not supported by competent, material, and substantial evidence on the whole record. Petitioner cooperated with respondent within the meaning of the law. Sanctions were unwarranted.
We are not unmindful that our holding may require respondent to come up with evidence that may be peculiarly within a mother’s knowledge and, therefore, very difficult to obtain or disprove. However, given that respondent need only prove its case by a preponderance of the evidence, we feel that the task is not insurmountable. Further, our holding is a narrow one, a blood test alone is not conclusive evidence of noncooperation.
Reversed.
There is no timeliness problem raised. Additionally, the sanction is a continuing one.
In light of our disposition of this case, we need not address petitioner’s argument that the sanction is a permanent one in violation of the unpublished consent judgment of the United States District Court in Carr v Dempsey, pile No. 80-73657 (ED Mich, January 4, 1992). | [
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Per Curiam.
This is a dispute between two insurance companies concerning liability for damages resulting from a high-speed police chase. In response to the parties’ cross-motions, the trial court granted summary disposition to plaintiff. We reverse.
Michael J. Jones was killed when his motorcycle crashed into a Wayne County Sheriff’s squad car. Mr. Jones was fleeing from Taylor police who had tried to stop him for a traffic infraction. The sheriff’s car had been parked across the road to stop Mr. Jones. The accident occurred at about 2:30 a.m.
Mr. Jones’ estate and family sued the City of Taylor, the Wayne County Sheriff’s Department and the individual law enforcement officers involved. The City of Taylor had no-fault insurance through Auto-Owners Insurance Company. It also had two comprehensive liability policies through Titan Indemnity Corporation. Both Titan policies contained language excluding from coverage "[p]ersonal injury . . . arising out of the ownership maintenance, operation, use, loading or unloading of any automobile” owned, rented, or operated by the city or its employees.
Titan refused to defend the city in the lawsuit. Auto-Owners defended the suit and eventually settled for $65,000. It then brought a declaratory judgment action against Titan, seeking to be reimbursed for half of its attorney fees and half of the settlement amount. Auto-Owners alleged that, during discovery in the underlying action, there was some expert criticism of the city’s policy regarding high-speed police chases and some indication that that policy may have contributed to the accident.
Noting a split between panels of this Court, the trial court relied on Vanguard Ins Co v Clarke, 181 Mich App 36; 448 NW2d 754 (1989), to hold that the auto-accident exclusion should not control. The court opined that because police officers conduct so much of their business from their automobiles, an automobile exclusion could be used to avoid liability "for almost anything.” The court then followed the dual-causation theory adopted in Vanguard and found that the accident had been caused both by the chasing automobile and by the allegedly improper policy regarding high-speed chases. The court required the two insurance companies to share costs and liability equally.
In Vanguard Ins Co v Clarke, 438 Mich 463; 475 NW2d 48 (1991), the Supreme Court reversed this Court’s decision and resolved the conflict noted by the trial court. The Court held that "[w]hatever the merits of dual causality in the tort law context, ... we do not discern a compelling legal or policy basis as to why that doctrine should nullify an unambiguous insurance policy exclusion for auto-related injuries in a homeowner’s policy.” Id. at 466. The Supreme Court’s decision in Vanguard controls the resolution of this present appeal.
Where the language in an insurance policy ex- elusion is ambiguous, it must be construed against the insurer and in favor of the policyholder. Id. at 471-472. Additionally, policy exclusions should be examined to determine whether the insured was nevertheless lead to a reasonable expectation of coverage. Id. at 472. However, in this case, as in Vanguard, the exclusion of auto-related injuries is admittedly clear and unambiguous. See id. at 472-473.
In Vanguard, the injury was the result of carbon monoxide accumulating in the home and in the attached garage when the insured closed the garage door but left his car running inside. Id. at 467. The Supreme Court found that the injury was the result of the use and operation of the automobile because it was the automobile, not the garage door, that emitted the deadly fumes. Id. at 473. The Court therefore held that the automobile exclusion precluded liability on the part of the homeowner’s insurance company. Id. at 474-475.
The Court noted that the injury in that case would not fall through the cracks of both insurance policies because of mutual exclusions. Id. at 474. The Court likewise declined to find that allowing double recovery was a sound reason to avoid the exclusion. Id. at 474. It further noted that exclusions play a part in the insurer’s computation of the price of a policy and concluded that "no sound jurisprudential or policy reason exists to introduce a legal theory or doctrine that departs from the literal interpretation of an unambiguous insurance contract.” Id. at 475.
After relying on Vanguard in the circuit court, Auto-Owners now seeks to avoid Vanguard by arguing that the facts of this case do present compelling policy reasons to adopt the dual-causation theory. Auto-Owners also argues that because the insured initially asked both insurers to defend the lawsuit, it must have had a reasonable expectation of coverage. It further argues that it seeks neither to nullify the exclusion nor to allow double recovery, but instead merely seeks an apportionment of liability. Lastly, it also contends that there were in fact two causes of the injury claimed here. We find these arguments unpersuasive in light of Vanguard.
First, the fact that police officers conduct a large part of their business from their automobiles is not a compelling policy reason to avoid the exclusion. Instead, that fact probably plays a large role in the cost of no-fault insurance charged to the City of Taylor by plaintiff Auto-Owners.
Second, the fact that the city may have initially asked Titan to defend the suit does not necessarily mean that it expected coverage from Titan, let alone that it had a reasonable expectation of coverage given the unambiguous language of the exclusion. Instead, the city was probably making sure that all possible sources of coverage were contacted.
Third, we disagree with the contention that there were in fact two causes of the accident. The allegedly improper policy concerning high-speed chases, like the garage door in Vanguard, "was not itself independently capable of producing the injury for which relief is sought.” Id. at 473, n 9. Actually, the garage door in Vanguard was even more of a proximate cause than the police policy in this case. As in Vanguard, the operation of the motor vehicle was "the death-producing instrumentality” in this case. Id. at 473.
Lastly, the fact that plaintiff only seeks to share rather than shift liability does not change the fact that, because the accident had only one cause, plaintiff is obviously seeking to avoid the exclusion. Titan’s policy is clear; it leaves no room for the interpretation advocated by plaintiff.
Reversed. | [
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Per Curiam.
Terry Washburn, successor independent personal representative of the estate of Michael B. Washburn, deceased, appeals by leave granted the June 13, 1990, order of Wayne Probate Judge Thomas A. Maher reopening the previously closed estate so that petitioner McCarthy & Associates (hereinafter McCarthy) could pursue its contract claim against the estate. We reverse.
i
Washburn’s estate was probated pursuant to the independent probate procedures, MCL 700.301 et seq.; MSA 27.5301 et seq., which contemplate the expeditious settlement and distribution of an estate without court supervision. Terry Washburn was appointed independent personal representative on December 10, 1986. Pursuant to statutes and court rules then in effect, notice to creditors was given by publication. No claims were filed against the estate, and decedent’s debts were paid and the assets distributed under the laws of intestacy to his widow and children. The estate was closed on March 23, 1988, when Terry Washburn filed a verified closing statement.
On March 22, 1989, McCarthy filed suit against Michael B. Washburn in the Wayne Circuit Court for breach of contract. When McCarthy was advised of Michael Washburn’s death, the complaint was amended to substitute Terry Washburn, personal representative of the decedent’s estate. The personal representative asked the circuit court to dismiss the amended complaint because no order reopening the estate had been entered. The circuit court apparently agreed that McCarthy had to reopen the estate in probate court.
McCarthy moved to have the estate reopened pursuant to MCL 600.848(1); MSA 27A.848(1), which provides:
Upon petition, where justice requires, and after due notice is given to all parties in interest, the probate court may grant rehearings and modify and set aside orders, sentences, or judgments rendered in the court.
McCarthy argued that justice required reopening the estate because, less than a month after the estate was closed, the United States Supreme Court decided Tulsa Professional Collection Services, Inc v Pope, 485 US 478; 108 S Ct 1340; 99 L Ed 2d 565 (1988), holding that an Oklahoma statute providing for notice to a decedent’s known creditors solely by publication violated the Due Process Clause of the Fourteenth Amendment. McCarthy argued that its right to due process would likewise be violated if it was forever barred from bringing its claims in this case.
The personal representative responded by arguing that Tulsa should not be given retroactive effect and that, at the very least, should not be given total retroactive effect in such a manner that an estate already closed will be allowed to be reopened. The personal representative also argued that § 848(1) was not applicable because the estate proceeded through independent probate and therefore no “orders, sentences, or judgments [were] rendered in the court” within the meaning of the statute. Instead, the personal representative argued that MCL 700.593(2); MSA 27.5593(2) was applicable. That statute provides:
Upon filing a petition after the closing of an estate, the court may cause the estate to be reopened for the purpose of administering after-discovered assets or any other assets belonging to the estate or to complete the administration of the estate in case the estate was closed without being fully administered by the fiduciary or court, or for the correction of typographical errors, omissions, or misdescription of property contained in any order or record in the estate, and for any of these purposes may appoint successor fiduciary. The failure of a complainant to ñle a claim against the estate during the original administration thereof shall not be a cause for reopening the estate or for the appointment of a successor ñduciary. [Emphasis added.]
The personal representative argued that the mandatory language contained in the last sentence required the probate court to dismiss McCarthy’s petition.
In an opinion dated May 10, 1990, the probate court granted the petition to reopen the estate and to file a tardy claim pursuant to §848(1) for the following reasons:
Under the old claims statute by which this estate was administered, notice only need be given by publication. However after the United State Supreme Court ruled in Tulsa Professional [Collection Services, Inc, 485 US 478; 108 S Ct 1340; 99 L Ed 2d 565 (1988)] that such notices deprived creditors of procedural due process, the Michigan Claims Act was amended to provide that in both supervised and independent probate, known creditors must be given actual written notice.
Because procedural due process is an important constitutional right, this court determines that the facts in this case create a classic situation "where justice requires” that the order closing the estate be set aside, and the case is re-opened for the purpose of permitting Petitioner to pursue its claim under its contract in Circuit Court.
II
The pivotal issue we must decide is whether the Tulsa decision applies retroactively to probate proceedings finalized before that decision was announced on April 19, 1988. Because our determination focuses on the application of a United States Supreme Court decision, we rely upon United States Supreme Court cases that have addressed the issue of retroactive and prospective application of judicial decisions. See Carter v Chattanooga, Tennessee, 850 F2d 1119 (CA 6, 1988).
In Chevron Oil Co v Huson, 404 US 97; 92 S Ct 349; 30 L Ed 2d 296 (1971), the Court articulated the following standards for prospective application of a decision: (1) Was a new rule of law established? (2) Will the purposes of the decision be furthered by retroactive application? and (3) Will hardship or injustice be generated by retroactivity?
Applying these standards, we must initially determine whether Tulsa established a new principle of law. In Tulsa, the Court addressed a question of first impression. In addition, the Court acknowledged that it rejected a practice widely adopted by state legislatures and courts when it stated: "Such 'nonclaim statutes’ are almost universally included in state probate codes.” 485 US 479.
To satisfy the second prong of the test, we must determine if the purposes of the Tulsa rule would be furthered by retroactive application. The purpose of the actuál notice requirement is to satisfy the due process requisite stated in Tulsa and established in Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 (1950). While that purpose may be furthered by retroactive application of the Tulsa decision, we conclude that the benefit of avoiding hardships created by retroactivity is an ample basis for prospective application.
The third prong of the test is an examination of the hardship generated by retroactivity. In this case, retroactive application of the Tulsa decision could cause the disturbance of many property rights. Those rights were defined according to law unexpectedly declared invalid, and they have created immeasurable reliance. "The actual existence of a statute, prior to [it being declared invalid], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.” Chicot Co Drainage Dist v Baxter State Bank, 308 US 371, 374; 60 S Ct 317; 84 L Ed 329 (1940).
We hold that the Tulsa decision does not apply retroactively to probate proceedings rendered final before it was decided on April 19, 1988. A probate estate is closed when the independent personal representative files a verified closing statement with the court. MCL 700.357; MSA 27.5357. In this case, the closing statement was filed on March 23, 1988. Thus, petitioner’s claim is barred because he failed to file it within the time limits prescribed by statute.
hi
Having concluded that procedural due process does not require the probate court to reopen the estate, we will briefly address respondent’s argument that reopening of the estate is barred under § 593(2) of the Revised Probate Code, and that the estate cannot be reopened by utilizing § 848(1) of the Revised Judicature Act.
At the time this estate was administered, MCL 700.328; MSA 27.5328 provided:
(2) Claims against a decedent’s estate which arose before or after the death of the decedent, including claims of the state and a subdivision of the state, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the independent personal representative, and the heirs and the devisees of the decedent, unless any of the following occurs:
(a) The claim is presented within 4 months after the date of the first publication of notice to creditors if notice is given in compliance with supreme court rule or 4 months after ,the claim becomes due, whichever is later._
(b) A petition for leave to file tardy claim is filed before final settlement and distribution of the assets of the estate if the petitioner did not have actual notice of the estate.
(c) The claim is presented within 3 years after the decedent’s death, if notice to creditors has not been published.
In this case, McCarthy’s claim was not presented within the specific time limits set forth in subsection a, nor was a petition to file a tardy claim filed before final settlement of the estate. Petitioner’s failure to file a claim within the time limit rendered the probate court without jurisdiction to hear the petition to reopen the estate under the Revised Judicature Act. See In re Hillier Estate, 189 Mich App 716, 721; 473 NW2d 811 (1991).
Reversed.
The statutes have subsequently been amended. 1988 PA 222 revised and consolidated the laws relative to the probate of decedents’ estates and applies to proceedings commenced on or after January 1, 1989. MCL 700.703; MSA 27.5703 was modified to require actual notice to known creditors as required by Tulsa Professional Collection Services, Inc v Pope, 485 US 478; 108 S Ct 1340; 99 L Ed 2d 565 (1988).
1978 PA 642, MCL 700.328(1); MSA 27.5328(1), provided:
An independent personal representative shall cause publication of notice with respect to presentment of claims as provided by supreme court rule.
MCL 700.357(3); MSA 27.5357(3) provides in part that "an independent personal representative shall close an estate by filing with the court... a verified closing statement.”
McCarthy alleged that it was an actual known creditor because decedent’s attorneys who assisted the personal representative in probating the estate were the same attorneys who were involved in settling the dispute involving the listing agreements before Michael Washburn’s death.
Our holding is consistent with the holdings of other states that have addressed this issue. See, e.g., Farm Credit Bank of St Louis v Brown, 217 Ill App 3d 730; 160 Ill Dec 581; 577 NE2d 906 (1991); In re Weidman Estate, 476 NW2d 357 (Iowa, 1991).
See part III.
MCL 700.732; MSA 27.5732 provided:
On the application of a creditor who failed to present his claim, if made within 18 months following the time originally fixed for the presentation of claims, and before the estate is closed, the court shall allow further time, not exceeding 1 month, for the creditor to present his claim. [Emphasis added.] | [
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Shepherd, P.J.
Plaintiff’s decedent, Kenneth Winklepleck, was a resident at the Michigan Veterans’ Facility in Grand Rapids. He suffered from multiple sclerosis. In May 1987, as a nurse was lifting Winklepleck from his bed with a hydraulic device, he was dropped and injured his head. He died in June 1987. Plaintiff sued the veterans’ facility and the State of Michigan. Defendants moved for summary disposition under MCR 2.116(C)(7) and (10) on the ground that defendant is immune from liability under the governmental immunity statute, MCL 691.1401 et seq.; MSA 3.996(101) et seq. Defendants argued that plaintiff’s reliance on the "public hospital exception” to governmental immunity was misplaced because the Michigan Veterans’ Facility is not a hospital within , the meaning of MCL 691.1407(4)(b); MSA 3.996(107)(4)(b). The trial court found that the facility was a hospital as defined in the governmental immunity statute and denied the motion. Defendants appeal by leave granted. We reverse and remand for entry of an order granting summary disposition to defendants.
The governmental immunity statute provides in pertinent part:
(4) This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. As used in this subsection:
(b) "Hospital” means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections. [MCL 691.1407; MSA 3.996(107). Emphasis added.]
Plaintiffs complaint implicated the foregoing "public hospital exception.” Defendants moved for summary disposition, arguing that the facility is not a hospital but rather is a unique institution, akin to a nursing home, operated by the state under statutory authority to provide housing and minimal medical care to the state’s indigent and disabled military veterans. Defendants pointed out that the definition of "hospital” -in the Public Health Code, MCL 333.1101 et seq.; MSA 14.15(1101) et seq., is identical to that in the governmental immunity statute with one exception not relevant here.
The Public Health Code defines a "health facility or agency” to include a hospital, a home for the aged, or a nursing home, among other things. MCL 333.20106(1); MSA 14.15(20106)(1). A "nursing home” is defined in the Public Health Code as follows:
"Nursing home” means a nursing care facility, including a county medical care facility, but excluding a hospital or a facility created by Act No. 152 of the Public Acts of 1885, as amended, being sections 36.1 to 36.12 of the Michigan Compiled Laws, that provides organized nursing care and medical treatment to 7 or more unrelated individuals suffering or recovering from illness, injury, or infirmity. Nursing home does not include a unit in a correctional facility that is operated by the department of mental health. [MCL 333.20109(1); MSA 14.15(20109X1). Emphasis added.]
Section 1 of 1885 PA 152 created the Michigan Veterans’ Facility. See MCL 36.1; MSA 4.871. Section 11(1) of the act describes eligibility for admission to the facility and provides in part that certain veterans
who are disabled by disease, wounds, or otherwise, and who have no adequate means of support, and by reason of their disability are incapable of earning their living and who would be otherwise dependent upon public or private charity, shall be entitled to be admitted to a facility, subject to such rules as promulgated by the board of managers pursuant to Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.315 of the Michigan Compiled Laws, to govern the admission of applicants to the facilities. [MCL 36.11(1); MSA 4.878(1).]
Defendants supported their motion for summary disposition with the affidavits of three public health officials. Walter S. Wheeler, III, signed an affidavit in which he stated that, in his capacity as chief of the Bureau of Health Facilities for the Michigan Department of Public Health, he has never considered the Michigan Veterans’ Facility a hospital. Rather, he considers it a nursing home operating without a license under the exclusion set forth in MCL 333.21711(3); MSA 14.15(21711)(3). If the facility were operating as a hospital, Wheeler would be compelled to recommend a licensing enforcement action. Wheeler stated that he had never done so.
The Wheeler affidavit did more than merely state his conclusions. Wheeler also explained that the Bureau of Health Facilities considers the veterans’ facility to be providing "nursing care and services consistent with those described in [MCL 333.21715; MSA 14.15(21715)].”
MCL 333.21715; MSA 14.15(21715) provides:
(1) A nursing home shall provide:
(b) A program of planned and continuing medical care under the charge of physicians.
(2) Nursing care and medical care shall consist of services given to individuals who are subject to prolonged suifering from illness or injury or who are recovering from illness or injury. The services shall be within the ability of the home to provide and shall include the functions of medical care such as diagnosis and treatment of an illness; nursing care via assessment, planning, and implementation; evaluation of a patient’s health care needs; and the carrying out of required treatment prescribed by a physician. [Emphasis added.]
Thomas C. Lindsay served as "Commandant” or chief executive officer of the Michigan Veterans’ Facility from September 1990. In his affidavit he stated, among other things, that the facility provides beds for 763 members, and that the "daily direction and supervision of the medical needs of the members is carried out by a staff of [178] nurses. The members’ program of planned and continuing medical care is under the charge of [6] staff physicians.”
Lindsay’s affidavit further states:
11. The Michigan Veterans’ Facility provides three levels of care:
Skilled Nursing: Serves the individual with severe disabilities requiring continuous nursing care and supervision.
Basic Nursing: Serves the individual with moderate disabilities.
Domiciliary Care: Serves the individual who needs very little nursing care but has some limitations which require a structured environment.
12. None of the three levels of care described above is suitable, to my knowledge, to a person with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician.
13. Should a Michigan Veterans’ Facility member’s condition become sufficiently acute that the daily direction or supervision of a physician is required, the member is transferred to a hospital.
14. All admittees to the Michigan Veterans’ Facility must meet the criteria of one of these levels of care as a prerequisite to membership.
Upon admission, a history and physical is conducted by a physician and is submitted to the va, indicating the individual’s appropriate level of care.
On an annual basis, a history and physical is conducted attesting to a continuation of one of the three levels of care.
To my knowledge, the Michigan Veterans’ Facility has never submitted an application for nor received any reimbursement from any source for providing a level of care greater than these three levels. [Emphasis in original.]
The third affidavit was that of Donald R. Barbachym, D.O., which states in pertinent part:
3. My duties at the Michigan Veterans’ Facility are that of Medical Director.
4. The Michigan Veterans’ Facility does not treat members with a condition requiring the daily direction or supervision of a physician.
5. Michigan Veterans’ Facility members are provided with a planned and continuing medical care under the charge of physicians consistant [sic] with that described in the Public Health Code, MCL 333.21715 [MSA 14.15(21715)]:
6. The physicians at Michigan Veterans’ Facility visit the members and assess their medical needs on average once every thirty days.
7. The Michigan Veterans’ Facility does not admit members with medical, surgical, obstetric, chronic or rehabilitative conditions requiring the daily direction or supervision of a physician, nor are such members, after developing such a condition, permitted to remain in the Facility.
8. I have reviewed the complete medical file maintained by the Michigan Veterans’ Facility on Kenneth Winklepleck.
9. I have reviewed these documents and have concluded that at no time during his residence at the Michigan Veterans’ Facility did Mr. Winklepleck receive treatment at the Facility for a medical, surgical, chronic, or rehabilitative condition requiring the daily supervision of a physician.
10. I base my conclusion on the following factors:
a. The patient was in the latter phase of his multiple sclerosis, since his history confirms that he first began to note symptoms in 1973. Therefore, in 1987 Mr. Kenneth Winklepleck was in his 15th year of his disease.
b. Mr. Winklepleck was seen by the Michigan Veterans’ Facility physicians infrequently, approximately once every thirty days.
c. Mr. Winklepleck’s initial examination upon his entry to membership in the Facility indicated that he had a medical history of multiple sclerosis, a slowly progressive central nervous system disease characterized by disseminated patches of demyelination in the brain and spinal cord, resulting in multiple and varied neurologic symptoms and signs, usually with remissions and exacerbations. There is no specific therapy for the disease, and nothing, in the absence of an acute attack, which could be described as an "active treatment” of the condition.
Plaintiff responded below, as she has in this Court, with medical records that she claims "show . . . that Kenneth Winklepleck was under the daily 'supervision or direction of a physician.’ ” Plaintiff also contends that the affidavits submitted by defendants provide no evidence that the veterans’ facility does not satisfy the governmental immunity statute’s definition of "hospital.” Also, plaintiff argues that the statutory definition is met by the following description of services found in the facility’s "Member Guide Book”:
Skilled nursing care is provided in this new, modern 343-bed unit. An organized program of medical care is available on a regular basis designed to meet the individual’s need. The unit is staffed with doctors, nurses, and technicians to provide for the medical needs of the members.
The building also houses the business offices, kitchen and dining facilities, (including provisions for special diets) doctors’ and dentists’ offices, clinics, x-ray, medical laboratory, occupational and physical therapy, chapel, and chaplains offices.
The Rankin Building was built in 1947, remodeled in 1963 and again in 1975. Here, the member is provided medical care on a less intensive basis than in the main building.
Besides the medical care provided by .doctors, nurses, and aides, physical therapy and occupational therapy are available for the member.
It is true that the above services are also offered to patients in hospitals. This, however, does not mean that defendant is a facility offering care to individuals with conditions requiring the daily supervision of physicians, one of the essential statutory tests for determining whether defendant is a hospital. In denying defendants’ motion for summary disposition, the trial court ruled:
I am of the opinion that as a matter of fact and of law that these circumstances compel this Court to determine that the Michigan Veterans’ Facility is a hospital within the meaning of [MCL 691.1407(4)(b); MSA 3.996(107)(4)(b)], and that the services performed to the residents are—and specifically this resident who in this case was afflicted with a chronic condition, was under the direct and daily control of a physician, even though the physician himself or herself did not personally provide the medical care and attention to the resident.
Accordingly, this Court is of the opinion that, since the Michigan Veterans Facility is a hospital, it is not exempt from liability and, therefore, the motion for summary disposition brought by the defendnat [sic] is respectfully denied.
I’ve indicated also that I would proceed under analysis as a (C) (10) motion .... [Emphasis added.]
The court then indicated, without elaboration, that denial of the motion was also correct under MCR 2.116(C)(7). We need not address the effect of the different standard applied under this subrule in light of our conclusion that the motion pursuant to MCR 2.116(0(10) should have been granted.
Summary disposition is proper under MCR 2.116(0(10) where, except for damages, there is no genuine issue pf material fact and the moving party is entitled to judgment as a matter of law. A motion under subrule C(10) tests the factual support for a claim. Hutchinson v Allegan Co Bd of Rd Comm’rs (On Remand), 192 Mich App 472, 480; 481 NW2d 807 (1992). Such a motion must be supported by affidavits, depositions, admissions, or other documentary evidence, MCR 2.116(G)(3), and must specifically identify the issues with respect to which the moving party believes there is no genuine issue of material fact, MCR 2.116(G)(4). When a motion under MCR 2.116(C)(10) is so made and supported, the responding party may not rest upon the mere allegations or denials of the pleadings, but must meet the motion with evidence setting forth the specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4); Hutchinson, supra, p 481.
Giving the benefit of reasonable doubt to the nonmovant, the court must determine whether a record might be developed that would leave open an issue upon which reasonable minds may differ. Hutchinson, supra, pp 480-481. Although courts are liberal in finding a genuine issue of material fact, if the nonmovant fails to meet its burden of showing that a genuine issue of material fact exists, then judgment for the moving party shall be entered if appropriate. MCR 2.116(G)(4); Prysak v R L Polk Co, 193 Mich App 1, 6; 483 NW2d 629 (1992).
This case presents essentially three tasks for this Court (the trial court was presented with the same tasks): (1) statutory interpretation, to the extent necessary, of MCL 691.1407(4); MSA 3.996(107X4), and in particular of the term, "requiring the daily direction or supervision of a physician”; (2) ascertainment of whether there exists a genuine issue of material fact; and (3) application of the statute to the uncontested facts to determine whether the Michigan Veterans’ Facility is a "hospital” within the meaning of MCL 691.1407(4); MSA 3.996(107)(4).
We find the second of these three tasks most important to the disposition of this case. The critical question before the court was whether there was a genuine issue of material fact regarding the status of defendant Michigan Veterans’ Facility. Bound up with this was the question of the meaning of the term "condition requiring the daily direction or supervision of a physician.” Defendants had argued that the facility did not offer services to individuals with a "condition requiring the daily direction or supervision of a physician” and that the facility did not, therefore, meet the statutory definition of "hospital.” The trial court rejected this argument, found that Mr. Winkle pleck’s care was subject to the daily direction or supervision of a physician, and ruled that the facility was a hospital.
Although the trial court would have been the finder of fact had this Court of Claims action gone to trial, the task of determining whether a genuine issue of material fact existed should not have become a minitrial. Thus, to the extent the trial court made findings of fact in resolving the motion for summary disposition, it erred. In re Peterson Estate, 193 Mich App 257, 261; 483 NW2d 624 (1992). Instead of "finding as a matter of fact and law” that the facility was, or was not, a hospital, the trial court should have confined itself to deciding whether defendants’ motion was properly supported, and, if so, whether plaintiffs response raised a genuine issue of material fact.
In this case, the contested issue involved the type of care offered by the facility. The governmental immunity statute excepts a facility from immunity if it is a "hospital,” i.e., if it offers (1) inpatient, overnight care, and (2) services for observation, diagnosis, and active treatment of an individual, (3) with a medical, surgical, obstetric, chronic, or rehabilitative condition, (4) requiring the daily direction or supervision of a physician. MCL 691.1407(4)(b); MSA 3.996(107)(4)(b).
The question raised by defendants’ motion was whether plaintiff could come forward with any evidence that the facility offered care and services to an individual with a "condition requiring the daily direction or supervision of a physician.” Our review of the record indicates that plaintiffs proffered evidence does not raise a genuine issue of material fact with regard to this question. We conclude that the trial court should have determined that defendants were entitled to summary disposition as a matter of law. MCR 2.116(C)(10).
The medical services described in the Member Guide Book are not inconsistent with those provided by a nursing home. MCL 333.21715; MSA 14.15(21715). The trial court, in its opinion from the bench, noted that Mr. Winklepleck "was afflicted with a chronic condition which required treatment on a regular and consistent basis,” and further concluded that the "nurses providing [the daily care at the facility] act under the direct supervision of a doctor or a physician associated with these premises.” Although MCL 333.21715; MSA 14.15(21715) directs that a nursing home shall provide "a program of planned and continuing medical care under the charge of physicians,” and that "[n]ursing care and medical care . . . shall include . . . diagnosis and treatment of an illness . . . and the carrying out of required treatment prescribed by a physician,” the trial court seemed to reason that any physician-supervised care at the veterans’ facility rendered the facility a hospital. It is one thing to have physicians available or on call on a daily basis for the benefit of those who periodically need the attention of a physician (as is the case in a nursing home). It is quite another thing to offer care to those whose conditions require the daily direction or supervision of a physician. Furthermore, that the activities of nurses might be under the daily supervision of physicians is not controlling. Under the statute, it is the patients’, conditions that must require daily supervision of a physician before a facility meets the test of being a hospital.
It further appears that the trial court concluded that the records proffered by plaintiff established that Mr. Winklepleck was in fact suffering from a condition requiring the daily direction or supervision of a physician, and that the facility was therefore a hospital by virtue of the fact that it was offering services to Mr. Winklepleck. The records proffered do not support this determination.
For example, exhibit B of plaintiff’s brief on appeal consists of several pages of "doctor’s progress notes,” which establish that between December 1982 and May 1987, Mr. Winklepleck was seen by a physician approximately forty-nine times, or on average less than once a month. In 1986, Mr. Winklepleck was seen twice in January, three times in April, and then not seen by a physician again until July 24, 1986. He was not seen after that until October 10, 1986, and then was seen next on December 2, 1986. Plaintiff attaches an exhibit D, captioned "Physician’s Orders.” There are approximately 120 entries spanning the dates of December 1982 through May 1987. Plaintiff also submitted a group of documents labeled "member’s progress notes” (exhibit F), with much more frequent entries.
Plaintiff proffers no expert testimony to the effect that Mr. Winklepleck suffered from a condition requiring the daily direction or supervision of a physician. Plaintiff therefore has not contradicted the affidavit of Dr. Barbachym stating that Mr. Winklepleck did not suffer from, or receive treatment for, such a condition. Similarly, plaintiff has not rebutted Dr. Barbachym’s statement that there is no "active treatment” for multiple sclerosis, absent an acute attack.
In summary, plaintiff’s documents establish no more than that Mr. Winklepleck received medical care, including visitation by physicians, prescription medication, minor surgery and x-rays at the facility’s clinic, and daily nursing care. In light of plaintiff’s failure to come forward with any evidence that Mr. Winklepleck suffered from a condi tion requiring the daily direction or supervision of a physician, we conclude that the trial court erred in denying defendants’ motion. We also note that the trial court’s apparent broad construction of the governmental immunity statute’s definition of hospital, to include all facilities that provide nursing care at the direction of physicians, contravenes the rule that exceptions to governmental immunity are to be narrowly construed. Wade v Dep’t of Corrections, 439 Mich 158, 166; 483 NW2d 26 (1992).
We further observe that the trial court unduly focused on the treatment of one person. The issue in the case was whether the facility offers care to individuals with conditions requiring the daily direction and supervision of a physician—not whether a particular patient had deteriorated to such a point but had not yet been transferred to a hospital. Again, we emphasize that there was no evidence that Mr. Winklepleck’s condition had so deteriorated. Even if it had, the facility does not unwittingly become transformed into a hospital for the brief interval that one patient is awaiting transfer elsewhere. Although plaintiff did not advocate such a position, the trial court’s emphasis on the condition of one patient necessitates our comment that the focus of attention in determining whether the facility is a hospital must be on the services offered by the facility and not on the condition of one patient.
Reversed and remanded for entry of an order granting summary disposition in favor of defendants.
The governmental immunity statute provides: "The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections.” MCL 691.1407(4)(b); MSA 3.996(107)(4)(b). The Public Health Code provides: "The term does not include a hospital licensed or operated by the department of mental health.” MCL 333.20106(5); MSA 14.15(20106) (5).
MCL 33.21711(3); MSA 14.15(21711)(3) provides:
A person shall not purport to provide formal or informal nursing care services of the kind normally provided in a nursing home without obtaining a license as provided in this article. This subsection does not apply to a hospital or a facility created by Act No. 152 of the Public Acts of 1885, as amended, being sections 36.1 to 36.12 of the Michigan Compiled Laws.
See also MCL 333.20109(1); MSA 14.15(20109X1), which excludes the veterans’ facility from the definition of "nursing home.” | [
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Gribbs, P.J.
Plaintiff United Services Automobile Association appeals as of right an order dismissing on grounds of res judicata its subrogation claim in this insurance case. MCR 2.116(C)(7). We reverse and remand for further proceedings.
In December 1987, Robert and Harriet Komer planned a vacation , in Colorado and hired sixteen-year-old Shane Nothelfer to watch their home while they were gone. Nothelfer had an unauthorized party at the Komers’ home on December 31, 1987, during which the home was vandalized and miscellaneous personal property of the Komers’ was stolen. In satisfaction of its obligation under the Komers’ homeowner’s insurance policy, plaintiff, United Services, paid the Komers $16,475.09 for damage caused during the party. However, the Komers claimed to have suffered additional property damage not covered by their insurance policy and filed suit against defendant Shane Nothelfer. United Services was not a party to that lawsuit. On October 9, 1989, the Komers settled with Shane Nothelfer for $1,200, and the lawsuit was dismissed with prejudice.
On October 26, 1989, plaintiff filed suit against Shane Nothelfer and his parents to recover its insurance payments to the Komers. The parents moved for summary disposition, which was granted. Subsequently, defendant Shane Nothelfer moved for summary disposition, alleging that plaintiff’s claim was barred by the doctrine of res judicata because of the Komers’ previous lawsuit against him. On August 13, 1990, the trial court issued an order granting Shane’s motion for summary disposition and dismissing plaintiff’s complaint. Plaintiff does not challenge the dismissal with regard to Shane’s parents. Therefore, the only defendant before this Court is Shane Nothelfer. Plaintiff now appeals.
Plaintiff contends that defendant waived the defense of res judicata when he failed to object to plaintiff’s nonjoinder in the Komer’s action against him, and that the trial court therefore erred in dismissing its complaint and in ruling that it was barred by the doctrine of res judicata from filing a suit against defendant. We agree.
MCR 2.205 has replaced the common-law rule against splitting a cause of action. Martin v Johnson, 87 Mich App 342, 346; 274 NW2d 785 (1978). MCR 2.205(A) provides the following with regard to the necessary joinder of parties:
Subject to the provisions of subrule (B) and MCR 3.501, persons having such interests in the subject matter of an action that their presence in the action is essential to permit the court to render complete relief must be made parties and aligned as plaintiffs or defendants in accordance with their respective interests.
Because joinder is mandatory under MCR 2.205(A), rather than permissive, joinder is required for the benefit of the defendant and thereby places on the defendant the burden of objecting to misjoinder. Martin, supra at 346. Thus, the defendant must make a timely assertion of the position that separate suits violate the rule prohibiting the splitting of actions, modernly known as the joinder rule. Chunko v LeMaitre, 10 Mich App 490, 496; 159 NW2d 876 (1968). If the defendant fails to make such a timely assertion, he waives his right to make such a claim; in effect, the defendant "acquiesces in splitting causes of action by not raising timely objection.” Id.
In this case, the record clearly indicates that defendant did not object to nonjoinder or move to have plaintiff joined in the lawsuit filed by the Komers to recover for losses not covered by the insurance policy. Therefore, plaintiff’s subrogation claim against defendant was not barred by the doctrine of res judicata when the Komers settled with defendant and stipulated to dismissal of their claim with prejudice.
We reverse and remand for further proceedings. | [
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Rehearing denied.
Reported ante, 346. | [
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Fitzgerald, J.
Raymond Wood died following injuries sustained when the scaffold on which he was working collapsed. Cecelia Wood, his widow, brought an action under the wrongful death act (MCL 600.2922; MSA 27A.2922) seeking, inter alia, damages for loss of his society and companionship. Defendants were Detroit Edison, owner of the project, and Parsons & Company and Marley Corporation, the subcontractors responsible for the design and erection of the scaffolding. Michigan Mutual, the workers’ compensation carrier of decedent’s employer, was joined as a defendant on the theory of negligent safety inspection. Jury trial was demanded.
During the pendency of the circuit court action, plaintiff, who had remarried, filed a motion in limine seeking a protective order to prohibit at trial any mention of remarriage or prospective remarriage of Cecelia Wood and to ensure that she be referred to only by the name "Wood”. The motion was denied. The court reasoned that if loss of society and companionship were claimed as damages, all facts pertaining to such loss, including remarriage, should be considered.
The Court of Appeals reversed, concluding that evidence of remarriage should not be allowed, and remanded the case for trial with instructions that the protective order be issued. This Court granted leave to appeal limited to the issue whether, in light of the amendatory language of 1971 PA 65 (MCL 600.2922[2]; MSA 27A.2922[2]), the remarriage of a plaintiff surviving spouse is admissible in a wrongful death action.
In 1971 the Legislature amended §2 of the wrongful death act to provide:
"(2) Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recovered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, While conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death. The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased. Such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action shall be distributed to the surviving spouse and next- of kin who suffered injury and in proportion thereto. Within 30 days after the entry of such judgment, the judge before whom such case was tried or his successor shall certify to the probate court having jurisdiction of the estate of such deceased person the amount and date of entry thereof, and shall advise the probate court by written opinion as to the amount thereof representing the loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total loss suffered by the surviving spouse and each of the next of kin of such deceased person, as shown by the evidence. After providing for the payment of the reasonable medical, hospital, funeral and burial expenses for which the estate is liable, the probate court shall determine as provided by law the manner in which the amount representing the total loss suffered by the surviving spouse and next of kin shall be distributed, and the proportionate share thereof to be distributed to the surviving spouse and the next of kin. The remainder of the proceeds of such judgment shall be distributed according to the intestate laws.” (Amendments emphasized.)
The amendments followed closely this Court’s decision in Breckon v Franklin Fuel Co, 383 Mich 251; 174 NW2d 836 (1970), which held that loss of companionship was not a pecuniary injury for purposes of the wrongful death act. The Legislature inserted three additions into this statutory section:
(1) recovery of damages for loss of society and companionship was specifically authorized;
(2) the phrase "under all of the circumstances” was inserted; and
(3) the method of distribution was included.
Plaintiff argues that these changes were directed solely to address this Court’s ruling in Breckon and did not authorize admission into evidence of either the fact or the possibility of a plaintiff’s remarriage.
Defendants contend that the phrase "under gill of the circumstances” is unambiguous, clearly serving to broaden the scope of damages recoverable following a wrongful death and allowing the court to consider any and all evidence affecting the amount of damages to be awarded.
The rule in Michigan, and that followed by a majority of jurisdictions, is that "evidence of plain tiffs remarriage or the probability of her remarriage is irrelevant and, therefore, was properly excluded, in determining the damages she suffered upon the death of her spouse”. (Emphasis supplied.) The rationale for the rule rests predominantly on three factors:
(1) A cause of action for wrongful death arises at the time of death. Thus, the amount of damages suffered is fixed as of that time and is to be determined as of that date.
(2) To allow evidence of a subsequent marriage to influence the amount of damages awarded for the loss of society and companionship of a prior marriage is highly speculative. Comparing one relationship to another in an attempt to determine damages invites qualitative inquiry inappropriate to the probing scrutiny of the trial court.
(3) Similar to the collateral source rule, evidence of the effects of a subsequent marriage should have no bearing on the amount due a plaintiff following a wrongful death. Compensation received from another source should not affect the responsibility owed to the injured party by the tortfeasor.
Evidence of the possibility of remarriage is held not admissible for the purpose of mitigating damages for essentially the same reasons.
In accordance with such reasoning, while we continue to believe that the fact of remarriage is irrelevant to mitigate damages in a wrongful death action, we feel that a protective order which enables a plaintiff to be addressed by a name other than that which she is currently using is not proper. We agree with the following reasoning of the Supreme Court of New Jersey:
"It would be offensive to the integrity of the judicial process if the plaintiff, after taking an oath to be truthful, were permitted to misrepresent her marital status to the jury. Of course, the defendants may not inquire into the details of the remarriage nor may they offer evidence concerning it. However, the desirable exclusion of evidence relating to the remarriage may not be carried to the point of affirmatively misrepresenting the truth to the jury.” Dubil v Labate, 52 NJ 255, 261-262; 245 A2d 177, 180 (1968).
The Illinois Supreme Court, in addressing this issue, stated, "We believe the judicial process in its search for truth need not resort to the condonation of perjury to accomplish its objective”. Watson v Fischbach, 54 Ill 2d 498, 503; 301 NE2d 303, 306 (1973).
Contemporary society offers a woman various options regarding her choice of name upon marriage. She may choose to retain her birthname or she may adopt the name of her husband. Following a subsequent remarriage, for any number of reasons, she may prefer to still be known by the name she has previously used. It is incumbent upon the courts to honor her choice and address a woman by the name she has selected so as to avoid any sense of false portrayal.
We therefore hold that evidence of a plaintiff surviving spouse’s remarriage may not be used to determine damages. If the plaintiff continues to regularly use the name Wood — Ms. or Mrs. Wood —after a remarriage, she is entitled to a protective order prohibiting referring to her or addressing her by the name of her present husband; the defendant’s lawyer has no right to address or refer to her by a name which she does not choose regularly to use. If, however, at the time of trial she regularly uses her new husband’s name she cannot properly ask the court to require the defendant’s lawyer to address or refer to her by a name which she no longer regularly uses. An appropriate limiting instruction may be requested by plaintiff in this regard. We remand this case to the trial court for further proceedings in accordance with this opinion.
Kavanagh, Williams, and Levin, JJ., concurred with Fitzgerald, J.
Bunda v Hardwick, 376 Mich 640, 656; 138 NW2d 305 (1965).
See Anno: Admissibility of evidence of, or propriety of comment as to, plaintiff spouse’s remarriage, or possibility thereof, in action for damages for death of other spouse, 88 ALR3d 926.
Bunda, supra, 652-653.
We differ from the view taken in the New Jersey case that the trial judge is required to instruct the jury, at the beginning of the case, that the plaintiff has remarried. | [
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] |
Butzel, J.
Contracts for the sale o'f lots fronting on Lawrence avenue between Hamilton avenue and 12th street, Detroit, contained restrictive covenants providing that nothing but a dwelling house or a duplex dwelling house might be built on the lots. All buildings were erected in conformity with the restrictions, except on a few lots at the corner of business streets. A two-story dwelling house was built on the two lots involved in the instant case. The contract and deed to James W. Parker and wife, grantors of defendant Eleanor C. Little, who purchased the property, contained the restriction. The deed, however, was lost, and through an oversight the restriction was omitted from a new deed given in substitution for the one lost. The deed from the Parkers to Mrs. Little did not contain the restriction. Mrs. Little did not testify in the case, but we are fully satisfied that the restrictions appearing of record in deeds for other lots in the subdivision, and the character of the neighborhood and the houses built in strict conformity with the restrictions, were sufficient notice of the existence of the restriction. Mrs. Little sold the property to defendant Beatryce W. Hamilton on land contract. The latter knew of the pendency of the instant suit at the time the contract was executed. Mrs. Little first leased the house to Mrs. Hamilton, who was engaged in the very commendable occupation of boarding and rooming children of parents who had separated. She had obtained a license from the welfare department of the State of Michigan, and was authorized to take care of 10 children. She had at one time conducted a school on the premises, and had as many as 18 pupils. The children, however, now are taken to a school in a different neighborhood, but they are otherwise cared for in the Lawrence avenue home, where the back yard is used as a playground.
In the summer of 1929, Mrs. Hamilton conducted a summer school on the premises and looked after 15 children. Ten children, whom she boarded at the time of the hearing, ranged from two to nine years in age. They slept on a sleeping porch that immediately adjoins the home of George and Helen Nerrerter, plaintiffs and appellants herein. The latter filed a bill to enjoin the nse of the property in the manner indicated, and claimed that it violated the restrictions. They showed that they and others had been very much disturbed by the noises of the children. Some 35 owners of property in the immediate neighborhood had made an ineffective effort to stop the school through the public authorities prior to the filing of the bill. We need not consider either the damages caused or the good work carried on by Mrs. Hamilton. The sole questions are whether the property is restricted, and whether the business or occupation of boarding and rooming a large number of children in the manner indicated is a violation of the restrictions. The trial judge denied relief to plaintiffs and dismissed the bill.
The testimony is uncontradicted that the lots on Lawrence avenue between 12th street and Hamilton avenue were sold under a'general plan and in accordance with building restrictions that were strictly followed. A reciprocal negative easement was thus established which was binding upon defendants. Allen v. City of Detroit, 167 Mich. 464 (36 L. R. A. [N. S.] 890); Sanborn v. McLean, 233 Mich. 227 (60 A. L. R. 1212); Oakman v. Marino, 241 Mich. 591; Kiskadden v. Berman, 244 Mich. 473; Austin v. Van Horn, 245 Mich. 344; Boston-Edison Protective Ass’n v. Goodlove, 248 Mich. 625.
A restriction limiting the construction of a building on premises to a dwelling house means a building designed as a single" dwelling to be used by one family. Harris v. Roraback, 137 Mich. 292 (109 Am. St. Rep. 681); Bagnall v. Young, 151 Mich. 69; Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726). The property itself is in a high class neighborhood, wholly residential in character. The restriction goes to the use of the premises as well as the character of the building. In Dingeman v. Boerth’s Estate, 239 Mich. 234, we said:
‘ ‘ Could a lot owner erect a large single residence on his lot and then turn it into a hotel or boarding house, and still claim to be using it for residence purposes? It seems to me obvious that such a use would violate the clear intent and purpose of the whole plan of development. Eating is one of the incidenté of ‘residing’ on a lot, as well as ‘rooming’ or sleeping on the premises. If one may conduct a business of renting rooms for hire and be within the restrictions, then one should also be entitled to conduct the business of renting rooms and serving meals (a hotel or boarding house)¡ or the business of serving meals alone (a restaurant). But either use, in my opinion, would be conducting a business, and, consequently, a violation of the restriction.
“So, too, running a rooming house or lodging house is clearly a business venture and contrary to the intent and purpose of the restrictive covenants.”
In Holderness v. Central States Finance Corp., 241 Mich. 604, we said:
“The provision (referring to a restriction for dwelling house purposes only) must be held to be a restriction controlling the use, as well as the character of building to be erected. Any other construction deprives the provision of all beneficial force and would be a mere evasion.”
The gathering together of a large number of children into one group by a person who makes it a business to board and room them for pay is a dis tinct violation of the restriction. It comes within the same rule as set forth in Hartwig v. Grace Hospital, 198 Mich. 725, where we held that a nurses’ home was not a residence within the meaning of the restriction clause; and in Dingeman v. Boerth’s Estate, supra, where we held the restriction prevented the turning of the property into a hotel, hoarding house, rooming or lodging house; and in Seeley v. Phi Sigma Delta House Corp., 245 Mich. 252, where we held that a college fraternity house could not be erected on land, the use of which was limited to one single private dwelling house.
The decree of the lower court dismissing the bill is reversed, and decree will be entered in favor of plaintiffs in accordance with this opinion, with costs to plaintiffs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fear, and Wiest, JJ., concurred. | [
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Fead, J.
This is a bill for an accounting, principally by Lionel Heap and George W. Potter as administrators of the estate of Robert R. Heap, deceased.
In 1920, William Heap, associated with his sons, Lionel and Cecil, in the partnership of William Heap & Sons, conveyed his interest in the firm to his five children, on condition that they pay him $9,000 per year for life. A limited partnership of the same name was formed, with Lionel and Cecil as general partners and Robert and two sisters as special partners. The firm manufactured plumbers’ woodwork. Lionel, who was a graduate law student but had not practiced law, was manager.
In 1923, Mr. Heap gave his children some bank stock and real estate, subject to their undertaking to pay some of his debts, for which the property was pledged, and to give his wife an annuity if she survived him.
Robert died intestate January 10, 1925, leaving as heirs his widow and minor son, plaintiffs here. His estate consisted of his interest in the partnership, appraised at book value of $31,512.25, and the other property given by his father, the bank stock valued at $1,000, and the real estate at $3,200. He also left $15,813.43 life insuránce to his wife.
Defendant Potter is a cousin of Mrs. Heap, was brought up with her practically as a brother, and is a business man in Missouri. He and Lionel were appointed administrators of the estate of Robert and guardians of his minor son. Mrs. Heap had had no business experience and she wholly intrusted her affairs to Potter and Heap. On advice of Potter, Lionel was given the insurance money to invest. On request of Mrs. Heap, Lionel paid some of Robert’s debts from the insurance money, took assignments to her, and they were allowed as claims against the estate.
October 14, 1925, the administrators filed a final account on the theory that they had sold to Mrs. Heap the whole interest of the estate in the partnership. On that basis, they charged themselves with the estate at appraised value and credited them selves -with, (1) property selected by widow, $200; (2) widow’s allowance, $1,800; (3) claims paid, $8,860.29; (4) expenses of administration, $359.84; and (5) loss on sale of property, $8,243.87. Tbe latter they computed as the then present value of William Heap’s claim for annuity against Bobert’s share in the firm, figured on William’s expectancy of life. They reported on hand, besides bank stock and real estate, cash of $12,047.65.
On advice of the administrators, Mrs. Heap executed receipts for widow’s allowances, for the claims assigned to her, for her share of the cash residue, and also signed waiver of notice of hearing and consent to allowance of the account and discharge of the administrators. Because of these instruments, the probate court, without special investigation, made an order allowing the account, made a further order assigning the residue of the estate to plaintiffs, and, on January 16, 1926, made a final order discharging the administrators and their surety.
No instruments were executed conveying the residue as ordered, but Potter and Heap charged themselves as guardians with the bank stock at $1,000 and cash of $5,523.83, and filed receipts therefor. They invested the cash in bonds. In this transaction no money was paid to Mrs. Heap in fact. On the contrary, her insurance money was used to make the cash payments necessary to settle the estate, including the money invested in bonds for the minor.
The first principal question is upon the claimed sale of partnership interest to Mrs. Heap. She denied that she had bought it. Lionel never spoke to her about it. Potter claims he told her that Lionel and his attorney thought'it the best way to close the estate and he advised her to do whatever they wanted. Accordingly she signed the papers presented to her at the final accounting but without understanding them. The best that can be said of the testimony of Potter and Heap is that each understood that the other had made sale to Mrs. Heap, but neither had done so. They gave her no instrument of conveyance of the interest. The account rendered was so drafted that it did not show on its face a sale to her. There was nothing on the face of any of the papers executed by her which indicated that she was buying the partnership interest.
Nor does the subsequent conduct of the parties support the claim of sale. The partnership had been paying Mrs. Heap a monthly allowance. Following the probate proceedings the partnership books continued to carry Robert’s capital account under his name, and allowances thereafter paid to Mrs. Heap were charged to Robert’s account. Lionel continued to carry his bank account as administrator, and made payments to Mrs. Heap by check thereon. He collected interest on the minor’s bonds, sometimes paid it to Mrs. Heap through his check as administrator, and sometimes credited it to Robert’s partnership account. He made no reports as guardian.. In 1928, he gave Mrs. Heap the only statement of the affairs of the estate which he made to her. It listed the partnership interest at $21,386.73, and certain bonds as “the property of Edna M. Heap and R. R. Heap, Jr.” In February, 1928, the partnership business, which had continued under the management of Lionel Heap, was incorporated under the same name by the general partners and some strangers. Robert was named as a stockholder, with 2,382 shares of no par value stock but which upon the financial statement represented $23,820. Mrs. Heap was not informed' of the incorporation, never consented to it, and no stock was ever issued to her, and no notice of corporate meetings given her although thereafter allowances were paid to her as before. The record disclosed no book account, paper, or other written evidence, nor, indeed, any act of the parties subsequent to the final account which would indicate to Mrs. Heap that the administrators claimed or understood that she had purchased her son’s interest in the firm, or which would indicate that she understood she had so purchased. It is difficult to conceive that, had a sale been made, one or the other would not have done an act in the course of years which would have indicated unequivocally to the other that he understood Mrs. Heap had purchased the interest.
Upon this record, we must sustain the findings of the circuit court that no sale had been made to Mrs. Heap, that, regardless of the actual intent or understanding of the administrators, the final account was false.
The record does not indicate that the administrators appropriated any of the property to their personal use. Potter had little to do with the administration except by way of advice to Mrs. Heap in support of the plans of Lionel. It is apparent that Lionel was anxious to relieve the partnership of the interest of a minor and the consequent oversight of a court. He seems to have considered the business a sort of family affair, as later he and Cecil pledged the minor’s bonds as security for'their loans, apparently made for partnership benefit. He may have considered that a sale of the partnership interest to Mrs. Heap would be beneficial to her. But his primary motive in the transaction appears to have been to relieve the partnership of complications.
Neither of the administrators can plead ignorance of business practices or fiduciary relationships. Their education and experience, as well as the law, charge them with knowledge of the duty to be fair in dealing with, and frank in disclosing the facts to, a woman who had placed her affairs unreservedly in their hands. She was on unfamiliar ground both as to business and court procedure, as they well knew. While it does not appear that they intended to deprive her of her property, it does appear that they sedulously refrained from explaining the account to her and informing her of the purport of the transaction to which they were trying to commit her. They used her confidence in them to secure her signature to the instruments, the purpose and effect of which she did not understand and which she signed because she trusted them. Whatever their secret intention, their subsequent dealings with her gave no indication that the estate was closed, but, from all appearances to her, they were still administering it. Their intention must be found from their acts.
Because of lack of knowledge of the facts and deception in a fiduciary relationship, Mrs. Heap is not estopped from attacking her receipts and her consent to allowance of account and discharge of the administrators. ' On the contrary, it must be held that she was induced to execute the instruments by the fraud of the administrators, and that the orders of probate court were the direct results of such fraud.
At this point the contentions of counsel require some notice of the pleadings and practice, to avoid a precedent for unauthorized procedure, but particularly to ascertain the .basis upon which an accounting may be had.
The bill does not pray that the final account or the orders allowing account, assigning residue, and discharging administrators and their surety be set aside. Plaintiffs claim the account as allowed must stand as to the debits reported by the administrators, but that they are entitled to attack the credits for falsity. They cite no authority for this position. Defendants contend the whole account must stand, and, in the alternative, if any part of it is rejected, a new account must be made.
The orders of probate court are judgments, res judicata of the matters involved, and cannot be attacked collaterally. Chapin v. Chapin, 229 Mich. 515. The allowance of an account is an adjudication of each item of it. Hall v. Grovier, 25 Mich. 428. The probate court determined, as it had to do to render the judgments, that the administrators had paid all debts, allowances, and residue reported by them. The finding of the payment of claims and residue is binding on the interested parties and is not open to question in a collateral proceeding. Clark v. Fredenburg, 43 Mich. 263. Except on appeal, no other court may inquire into the sufficiency of the testimony to determine whether it sustains the findings and orders nor, indeed, whether they were supported by any evidence. Morford v. Dieffenbacker, 54 Mich. 593; Egan v. Grece, 79 Mich. 629; Holden v. Lathrop, 65 Mich. 652. The orders, therefore, were judgments that the receipts were valid. The only procedure by which a court of equity may inquire into the account is on bill to set aside the orders for fraud.
While the bill did not pray that the probate orders be set aside, the facts alleged in it, if proved, would support such relief. It contained a prayer for general relief. Defendants did not plead to the jurisdiction of the court to order an accounting nor that the orders of probate court were res judicata. As the case was presented to the circuit court, the orders of the probate court seem to have been wholly disregarded by counsel. The court decreed an accounting upon the merits. In this court the merits of an accounting were fully briefed. In view of the situation, an amendment to set up the proper prayer may be considered made if the general prayer does not cover the proper relief. Gillen v. Wakefield State Bank, 246 Mich. 158. Plaintiffs are entitled to a decree setting aside the probate orders for fraud. This leaves the whole case open to inquiry to strike an account upon an equitable basis.
With the account set aside, the administrators are chargeable as though it had not been made. It is familiar law that the surviving partners have control of the partnership property and business for the purpose of liquidation. In the articles of the partnership at bar the surviving partners were authorized to continue the business for five years after the death of one. The liability of an administrator in such cases has been stated:
“In cases like the present, where a portion of the assets consisted of a partnership interest, he could only be properly charged with what he actually received or ought to have obtained from the survivor or from other sources.” Loomis v. Armstrong, 49 Mich. 521.
The authority of a surviving partner does not include the right to convert the partnership into a corporation. The formation of the corporation at bar amounted to a conversion of the partnership interest of the estate. The administrators not only used no means to prevent the conversion or to conserve the interests of the estate but the active administrator managed the conversion. The partnership interest, through the neglect of one and the active participation of the other administrator, became lost to the estate, and they must be held accountable for it.
Strictly speaking, the administrators would be chargeable for the loss as of the time of conversion, but, except as reported in the financial statement, the value of the partnership interest at that time was not made the subject of proof. Plaintiffs contend for an accounting as of the time of final account on the theory of sale. The court so found, and plaintiffs have not appealed. The value of the partnership interest on such theory was less than that of the original appraisal, which is the primary standard of liability, and would be more favorable to defendants than value at the time of conversion so far as indicated by the evidence here. In view of all the circumstances, such method of accounting is not inequitable and will be adopted.
An account will be made up as follows:
1. The administrators will be charged with the value of the partnership interest, less deduction for lien of "William Heap as of the time of and as shown in the final account, with legal interest.
2. They will be credited with all claims allowed by the probate court in the final account except those paid out of the insurance money and the widow’s allowances.
3. As the administrators are charged as upon sale at the time of accounting, they are entitled to credit for the sums which the partnership subsequently paid to Mrs. Heap out of its funds, not including the bond moneys which went through the books of the firm. The moneys so paid are not traceable to the insurance fund- and cannot be credited to it.
4. As the bank stock was sold by the pledgee to pay the debt for which it was collateral when given by William Heap and the balance divided among his children, and it does not appear that the administrators conld have salvaged more for the estate, they will be charged only with the amount received.
5. It does not appear that the administrators had power or means to remove the lien upon the real estate and they cannot be held liable for it.
The suit included an accounting by Lionel Heap as trustee of the insurance fund. Some of it was used to purchase the bonds carried in the minor’s estate. Of right they belong to Mrs. Heap, should have been awarded to her, and so credited to Lionel. Neither Mrs. Heap nor Lionel personally appealed from the decree, which confirmed them in the minor’s estate. On further proceedings, counsel may indicate their ideas of what should be done about it. In any event, if it be determined that the bonds shall remain in the estate of the minor, the guardians are equitably entitled to credit for income therefrom paid to Mrs. Heap because it went to the support of the minor.
Defendant Potter was not served with process. He appeared in court with counsel but took no part in the hearing except to testify. Personal decree on accounting ran against him. He took a general appeal. We need not determine the power of the circuit court to enter the personal decree against him. Because the hearing in this court is de novo, the general appeal was an appearance which renders him subject to the jurisdiction of this court. 4 C. J. p. 1346; Ann. Cas. 1914 C, 699, note.
Defendant Fidelity & Deposit Company, surety on the administrators’ bond, is a proper defendant. 3 Comp. Laws 1929, § 14018. On settlement of the decree, counsel may present their contentions as to the form of relief against it, in view of Grady v. Hughes, 80 Mich. 184, and 3 Comp. Laws 1929, § 15934.
Defendant Fidelity & Deposit Company pleaded the statute of limitations, 3 Comp. Laws 1929, § 13976, which requires action on the bond of an administrator to be brought within four years after his discharge. It is conceded that the bar does not apply as to the minor. 3 Comp. Laws 1929, § 13978. If setting aside the order of discharge does not revive the bond, it nevertheless appears that the cause of action was fraudulently concealed from Mrs. Heap and that she brought suit within two years after discovering the fraud. 3 Comp. Laws 1929, § 13983. She discovered the fraud when her allowance was discontinued and she retained an attorney to investigate. Before that the conduct of the administrators was such as to indicate to her that the estate had not been closed and nothing transpired to cause her to become suspicious, having in mind her confidence in them. We recognize the general rule that the running of the statute will not be postponed if the' defrauded person may discover the fraud from public records. This rule does not apply to a person while a fiduciary relationship exists and nothing occurs to indicate the nécessity for investigation. 22 L. E. A. (N. S.) 215, note. As the concealment at bar would operate against the principal, it operates also against the surety to postpone the running of the statute. 37 C. J. p. 980; 17 E. C. L. p. 966.
The accounting here outlined is substantially different from that decreed. A large number of items are involved upon which there is considerable dispute between counsel. We think that, unless counsel can agree on an accounting within 15 days, the cause should be remanded to the circuit court to strike an account in accordance with this opinion and report its findings to this court for decree.
The decree will be modified, and further proceedings had as above provided. Costs will await final decree.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff, January 28, 1930, filed her bill of complaint against defendants to rescind two written contracts for the purchase of real estate, to recover the money she had paid on such contracts, and for other relief. From a decree for plaintiff, defendant Karnatz appeals. Plaintiff alleges defendant Karnatz, October 6, 1925, owned lot 50 of Karnatz Bonaparte subdivision of lot 4, Beahmer’s subdivision of section 31, town 1. south, range 11 east; that the defendant Schanhite was the agent of defendant Karnatz in the sale of this lot to plaintiff ; that Schanhite represented the lots as residence lots, worth $1,400, and that the adjoining property belonged to defendant Karnatz and was a part of a general scheme of development in that locality. Plaintiff went to see the property, accompanied by one Evelyn C. Bazley. She made some objections to the property, and thereupon Schanhite represented to her defendant Karnatz owned the adjoining property; the barn on the property, which she objected to, was only a temporary structure and would be removed; the owner had already contracted to have the barn torn down; the streets were to be extended and the property would be on a trunk highway; the defendant would, at her own. expense, install sewers, sidewalks, and water mains and plant at least one tree in front of the premises, and contracts were already let for the construction of homes in the subdivision, and the neighborhood was to be a high-class residential district. Plaintiff entered into a contract on October 6, 1925, for the purchase of lot 50, and Miss Bazley purchased on contract about the same time lot 51, and plaintiff acquired Miss Bazley’s interest in lot 51, about March 1,1926. She claims the representations in relation to its being a residential subdivision were false, as were the representations made as to the extension of streets and shade trees and the building of sidewalks and sewers. The contracts were identical except the number of the lots. The trial court found defendants guilty of fraud and misrepresentation in the sale of the lots and that defendant Karnatz failed,, neglected, and refused to install sewer mains in the subdivision in accordance with the contract. He found plaintiff was entitled to recover what she had paid on the lots and a lien on the same for the money paid by her on the contracts, with costs. We think the testimony sustains the findings of the trial court, and that plaintiff is entitled to the relief granted.
In Witte v. Hobolth, 224 Mich. 286, the majority of the court held,
“The decree for rescission and cancellation gives plaintiff a lien on the said personal property to secure payment of the amount found to be due.”
In German Bundescheim Society v. Schmidt, 242 Mich. 139, it was held the cases of Von Hoene v. Barber, 215 Mich. 528, and Mulheron v. Henry S. Koppin Co., 221 Mich. 187, were overruled by Witte v. Hobolth, supra, the holding of which was applied to a land contract.
Much of appellant’s brief is devoted to plaintiff’s failure to rescind or to give notice of rescission, and return or tender a return of the consideration received by her by the contract, prior to the commencement of suit. There may be some confusion in the cases elsewhere on this subject, but in this State the rule is settled. A court of law entertains an action for the recovery of land or damages based upon a rescission by the party plaintiff. Rescission is a condition precedent to the maintenance of suit. It can be maintained only where rescission has taken place. On the other-hand, a suit in equity is not based upon rescission. It is a suit for rescission. 1 Pomeroy’s Equity Jurisprudence (3d Ed.), § 110. Restoration or tender before suit is a necessary element in legal rescission, but is wholly superfluous as a prerequisite to the commencement of a suit in equity for rescission or cancellation. 6 Pomeroy’s Equitable Remedies, § 688. In Jandorf v. Patterson, 90 Mich. 40, it was held it was not necessary for complainant to reconvey or tender reconveyance before filing a bill for rescission.
In Peters v. Fagan, 244 Mich. 46; Sutton v. Meyering Land Co., 248 Mich. 601; and Brow v. Gibraltar Land Co., 249 Mich. 662, where assumpsit was brought, it was held a tender should have been made prior to the institution of suit. These cases do not affect the rule in equity, nor the reasons upon which it is based.
In Witte v. Hobolth, supra, a bill for rescission on the ground of fraud was filed, and the failure of plaintiff to reconvey or tender reconveyance prior to the institution of suit was urged as a defense. It is said:
“It is said that plaintiff neither restored nor offered to restore to defendant the property received before seeking rescission. Neither was necessary. A bill in equity praying rescission proceeds on the theory that there has been no rescission, not on the theory that rescission has already been accomplished. Were plaintiff to sue at law for the money he paid defendant he should, before suit, restore, or tender restoration of, the property he received that by his own act he thus may have legal right and title to the money.”
And in Maurer v. Iden, 242 Mich. 568, Jandorf v. Patterson, supra, and Witte v. Hobolth, supra, were cited with approval, and it is said:
“While restoration or a tender of restoration is a prerequisite to recovery in a suit at law on the ground of rescission, it is not a condition precedent in this type of case, where cancellation or rescission is sought by bill in equity.”
It is contended, also, that plaintiff may not rescind while in default.
“Plaintiff had the right to rescind without paying or tendering payment o'f the unpaid portion of the purchase price notwithstanding he was in default in his contract payments. * * * Pull performance thereof would merely have consisted in his paying more, and upon rescission the defendant would then have been required to repay to plaintiff a correspondingly larger sum.” Brow v. Gibraltar Land Co., supra.
Plaintiff holds the lot sold to Miss Bazley, as assignee. A cause of action for fraud may not be assigned. The representations complained of were made in plaintiff’s presence and relied upon by'her. This question is not raised by appellant, and is passed.
We are satisfied this reasoning is applicable to the facts here involved. The decree is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Pead, Wiest, and Bittzel, JJ., concurred. | [
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McDonald, J.
This bill was filed to have a foreclosure sale and sheriff’s deed set aside bn the ground that the plaintiff, one of the mortgagors, was not served with notice of the proceedings. On motion of defendants the bill was dismissed. The plaintiff has appealed.
The mortgage was given by the plaintiff and Leonidas Polites, both residents of the city of Detroit but the mortgaged property is located in the city of Dearborn. Foreclosure was by -advertise ment. There is no charge in the bill that, in the proceedings, the statute was not strictly followed. No irregularity, is charged. The sole theory of the plaintiff’s case is that he was not served with notice of foreclosure, and that he supposed the mortgagee would not undertake such proceedings without notifying him.
The mortgage contained the usual power of sale. The statute authorizing foreclosure by advertisement does not require actual notice to the mortgagor. It only provides for publication and the posting of notice on the premises. 3 Comp. Laws 1929, § 14427. As the plaintiff bases his case solely on the ground that he received no actual notice, his bill was properly dismissed.
The decree is affirmed, with costs to the defendants.
Clark, C. J., and Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
On Rehearing.
Sharpe, J.
(for affirmance). The trial court found, and I agree with his finding, that there was “fraud in the making of the note, the fraud being on the part of B. W. Marr & Company and to the injury of A. L. Hill, the defendant.” The burden was then cast on the plaintiff to prove that it was a holder in due course. To do so, it must have shown ‘ ‘ That he took it in good faith and for value * * # that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” 2 Comp. Laws 1929, § 9301.
The facts, as I gather them from the record, are as follows: B. W. Marr & Company was organized as a corporation in April, 1926, for the purpose of engaging—
“in the general business of real estate, buying and selling, leasing and sub-leasing property, syndicating and subdividing, engaging in property manage ment, rentals, contracts, mortgages, interest and equities, and acting in the capacity of a, holding company.”
The note sued upon was given on December 11th of that year, and purchased by 'the plaintiff four days later. The articles of association disclose that 495 shares of its capital stock were allotted to B. W. Marr, 2 shares to Vincent Dacey, and the remaining 3 shares to James S. Novy. P. E. Vandermade was an insurance agent. He testified that Marr told him he was forming a hotel company, and wanted life insurance to divert it to that company. “He told me that the insurance would be turned over to the hotel company.” He agreed to take the insurance in the company represented by Vandermade if he (Vandermade) could get the money on Hill’s note. Vandermade took the defendant’s $2,500 note, indorsed “B. W. Marr & Co. (Sgd.) by B. W. Marr, Pres.,” indorsed it himself, and secured its discount at the plaintiff bank, used $404 in payment of the insurance, and gave Marr his check for $2,096, payable to B. W. Marr & Company, which Marr indorsed as he had the note and deposited it to the credit of B. W. Marr & Company in the People’s Wayne County Bank, in which it kept its account.
Harry S. Covington, an officer in the plaintiff bank, testified that when Vandermade produced the note for discount he asked him, “What are you doing with B. W. Marr & Company’s note?” and that Vandermade answered, “I am selling him insurance, ’ ’ and that he knew when he discounted it that Vandermade “was writing insurance for B. W. Marr & Co.”
The defendant Hill testified that the note in question and other notes, totaling $17,500, were given by him to Marr & Company to secure to him a one- half interest in certain real estate to be purchased by the company and developed and subdivided. It appears that the Other notes were turned over to the man from whom the land was to be purchased. They were afterwards returned to the defendant. It is apparent that defendant knew that his notes were likely to be negotiated by Marr & Company.
Under these facts, which in my opinion are established by the weight of the evidence, the trial court was warranted in concluding as a matter of law that the plaintiff was a bona fide holder in due course for value. B. W. Marr & Company is not here insisting that the note was indorsed by its president without authority. It could not well do so without returning to Vandermade the $2,096 which was deposited to its credit out of the proceeds thereof. It was what is frequently referred to as a “ one-man corporation. ’ ’ The general rule that a president of a corporation has no’ authority to bind it by such an indorsement should not, in my opinion, be here applied. In Gould v. W. J. Gould & Co., 134 Mich. 515 (104 Am. St. Rep. 624, 2 Ann. Cas. 519), cited in our former opinion in its support, it was said:
“It is true that the authority to transact business of this character may be implied where it is shown either that the president has been held out as having charge of the business, and as authorized to perform such an act on behalf of the corporation as that in question, or where the corporation is .shown to have received and retained the benefits of the transaction. ’ ’
In Ceeder v. H. M. Loud & Sons Lumber Co., 86 Mich. 541 (24 Am. St. Rep. 134), it was held (syllabus) :
“The president of a manufacturing company, who is in the active conduct and management of its busi ness, must be presumed to have all the powers of any agent exercising like control or management, and to have authority to do what is usually and ordinarily done by such agents or managers.”
See, also, Sarmiento v. Davis Boat & Oar Co., 105 Mich. 300 (55 Am. St. Rep. 446).
Had the plaintiff taken this note, indorsed as it was, in payment of his individual debt to it, or permitted him to deposit the proceeds thereof to his own credit in the bank, a different question would be presented. In speaking of the degree of care which a purchaser of negotiable paper must exercise, Mr. Justice Stone, speaking for the court in Hakes v. Thayer, 165 Mich. 476, 488, said:
“It was at one time held that circumstances which ought to excite the suspicions of a prudent and careful man constituted notice and put the purchaser upon inquiry. This rule has been abandoned, and it is the almost universal rule now that neither suspicions, nor even gross negligence on the part of a taker will affect his right, unless the suspicions or circumstances amount to bad faith. Suspicions or even knowledge of facts which will fall short of bad faith do not amount to notice.”
Having in mind the nature of the business in which the corporation was engaged, the personal interest of Marr therein, the purpose he had as president in indorsing the note, the information relative thereto communicated to plaintiff’s official at the time 'of its purchase, and the use to which the proceeds of the note were put, in my opinion it should be here held that the plaintiff was a holder thereof in good faith for value and entitled to recover from the defendant.
The judgment is affirmed.
Clark, C. J., and North and Butzel, JJ., concurred with Sharpe, J.'
Potter, J. (for reversal). This case submitted at the April, 1931, term, opinion in which is reported (254 Mich. 333), is before ns on rehearing. There was judgment for plaintiff in the court below against all defendants. Defendant Hill alone appealed. As to him the judgment was reversed. B. W. Márr, president of B. W. Marr & Company, a corporation, was a real estate speculator, dealing in pretended real estate holdings near Detroit. He procured Hill’s notes for $17,500 by fraud. But one note of $2,500, signed by Hill, is before us; a copy of it is set up in the opinion above referred to. This note was given by Hill to B. W. Marr & Company. Defendant Yandermade was an insurance agent. He wanted to sell Marr life insurance. Marr agreed with Yandermade to buy life insurance and pay a premium thereon if Yandermade would take in payment the $2,500 note of Hill, given to B. W. Marr & Company, a corporation. Yandermade went to plaintiff bank and told its officers he could sell the insurance to Marr if the bank would cash Hill’s note, and give Yandermade the amount of the premium on the insurance policy on Marr’s life and deliver back to Vandermade a check for $2,096 payable to B. W. Marr & Company. With full knowledge disclosed to it by Yandermade that a part of the proceeds of the sale of the note of B. W. Marr & Company, a corporation, was to be used by B. W. Marr to pay his individual obligation, plaintiff accepted the note of the corporation indorsed by Marr, paid Yandermade his insurance premium, and delivered to him a check for the balance of $2,096 payable to B. W. Marr & Company. The president of B. W. Marr & Company had no implied authority to indorse its commercial paper. He had no presumptive right to convert the company’s assets to his own use and benefit in payment of his per sonal obligation. The testimony shows he had no actual authority to do so. B. W. Marr & Company is not here defending on the ground of Marr’s lack of authority to indorse. The question here involved is whether plaintiff is a bona fide holder of defendant Hill’s note in due course. No one is a holder in due course who takes a note belonging to a corporation with actual knowledge its proceeds are to be used to pay the individual debt of a member thereof without inquiry to ascertain the extent of the indorser’s authority to transfer the note and convert the proceeds to his own use. Where the note was originally procured by fraud, the burden of proof is upon the holder thereof to show it is a bona fide holder for value. Newall v. Bridges, 251 Mich. 384.
A similar question was involved in McIntosh v. Detroit Savings Bank, 247 Mich. 10, 15-17, where it was said:
“When Cranston, having possession of valid checks of third persons belonging to the partnership, and payable to it, indorsed those checks in the partnership name per J. H. Cranston, and deposited them or the proceeds thereof to the credit of his own account in his' own name in defendant bank, it, from the face of such checks themselves, not only had notice but knowledge of the ownership thereof and of their proceeds and of Cranston’s misappropriation of such partnership funds. * * * It knew Cranston was, prima facie, committing a fraud upon his partner, * # * and neither the transfer nor the indorsement were binding on the firm without actual authority or ratification.”
In Jones v. Turner, 249 Mich. 403, it was said:
“One who accepts company property in payment of the individual indebtedness of a member of the company knows that prima facie the individual so disposing of the company property is perpetrating a fraud upon the company, and the creditor who accepts company property on the indorsement of the company made by an individual in payment of his individual debt will be deemed to have acted in bad faith and in fraud of the company.”
A substantially similar holding was made in Wagner Trading Co. v. Battery Park Nat. Bank, 228 N. Y. 37 (126 N. E. 347, 9 A. L. R. 340), where it was said:
“When it accepted the checks payable to the plaintiff and indorsed by Wagner as president of the plaintiff for deposit to the account of Wagner himself, it did so at its peril to ascertain whether Wagner had authority to indorse them and by his indorsement transfer the money to be paid thereon to his personal account.”
Upon reconsideration of this case I see no reason why the conclusion arrived at when it was first disposed of by this court should not be adhered to. Judgment should be reversed, with costs; new trial should be granted.
McDonald, Fead, and Wiest, JJ., concurred with Potter, J. | [
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Sharpe, J.
The plaintiffs purchased 40 acres of land and the personal property thereon in Allegan county from the defendants Mr. and Mrs. Jones, under land contract, dated April 3,1929, at the price of $6,675, with a down payment of $2,500 and annual payments of $500 and interest thereafter. They entered into possession a few days later. On April 3, 1930, they paid the interest due and $450 on the principal. They also paid the 1929 taxes, amounting to $56. It is their claim that in January, 1931, they tendered to Mr. Jones a quitclaim deed of the premises and a bill of sale of the personalty then on the place and an offer of possession. On March 17,1931, they filed the bill of complaint herein for rescission, alleging that they had been induced to make the purchase by fraudulent representation. Mr. and Mrs. Jones answered, denying the allegations of fraud, and by cross-bill sought foreclosure of their contract. The E. A. Strout Realty Agency, Inc., which had advertised the property for sale in a catalogue issued by it, was also made a defendant, but there seems to have been a discontinuance as to it.
After the submission of proofs in open court, a personal decree was entered against Mr. and Mrs. Jones on June 15, 1931, in the sum of $2,672.13, with payment thereof to be made within 60 days from June 8, 1931, and declared to be a lien on the prop erty. It also provided that plaintiffs might remain in possession and have execution for the amount and sell the property thereunder. Mr. and Mrs. Jones appeal. They are hereafter called the defendants.
The allegations of misrepresentation in the bill of complaint may be thus summarized:
1. That the farm and personalty were well worth $6,600.
2. That they would readily sell for that amount.
3. That the farm and the poultry business conducted thereon had produced an income of $5,100 the preceding year, and that a living could be made out of the poultry business alone.
The burden of proof rested upon the plaintiffs to establish by a preponderance of the evidence that these representations were made, that the plaintiffs relied upon them, and that they were untrue. Mr. Lapicki was born in Russia, came to this country in 1907, and had thereafter worked in shops or factories. Mrs. Lapicki had lived on a farm for several years. They were married in 1928. It appears that she took the leading part in the negotiations with the defendants.
1 and 2. They both testified that the statements as above were made by Mr. Jones. They also claim that they relied upon the advertisement published in a catalogue, in which the property was described as a “beautiful home and poultry farm, one of the best in Michigan,” with a “quick-sale price $6,875.”
Mr. Jones admitted that he had listed the property for sale with George F. Carner, a representative in "Wayland of the real estate agency, and asked the price therein stated. The plaintiffs, then living in DeKalb, Illinois, read the advertisement in the catalogue, and came to Wayland and interviewed Carner, whose name was appended thereto. It is admitted that he took them to see this and several other farms which he had' for sale, stating the price thereof; that they looked over the land and the buildings on this farm and liked it better than any of the others shown them. After a few days they discussed the purchase thereof with Jones. He agreed to reduce the price from $6,875 to $6,675, for the reason that he had fewer hens on the farm than were stated in the advértisement. They then went to a bank in 'Wayland, where the .contract was prepared and executed. Plaintiffs had to send to Chicago for the down payment, and stayed with defendants at their home until it arrived four days later, when the contract was delivered and defendants moved out and plaintiffs took possession.
Mr. Jones, while denying any personal statement or representation of value, insists that the farm and personalty thereon were at that time worth the price plaintiffs agreed to pay for it. He testified that he purchased the property in 1922 for $2,500; that he made improvements thereon, listing them, in the sum of $2,545, and that, with the personalty and the increase in value after his purchase, the property was worth the sum it was sold for; that he several times told the plaintiffs that that was his price, and that “they could take it or leave it.”
Carner, the real estate agent, testified that in his opinion the property was then worth $6,675. Martin Beaver, who had for many years lived on a farm in the vicinity, testified that the land and buildings were worth about $5,000. Charles Ellis, secretary of the Farmers Mutual Fire Insurance Company, testified that in May, 1928, he appraised the value of the buildings on the farm (listing them) for the purpose of insurance at the sum of $4,825.
Several farmers living in the vicinity were called by plaintiffs, and testified that the value of the land and buildings was from $3,000 to $4,500. We quote from the testimony of one of them:
“Q. How much do you think this farm is worth, the farm and buildings?
“A. Just the farm, I think $3,000.
“Q. Was it worth that in April, 1929?
“A. Well, according to what I bought, it wasn’t hardly worth that, but I thought I would put it on that anyhow, at that price, $75 an acre.”
It seems apparent that the value, as fixed by at least some of them, was as of the date of the hearing, in May, 1931. There is evidence that the value of farm land and its equipment had greatly depreciated between the time of the sale to plaintiffs, in April, 1929, and that time. Even if the representation as to value was made as claimed by plaintiffs, we are of the opinion that they have not sustained the burden of proof as to its falsity.
3. The advertisement stated, “Income last season $5,100.” The defendants testified that they had not seen the advertisement published in the catalogue ; that, before the deal was closed by delivery of the contract, Mrs. Lapicki produced it, and that defendants then stated to her that this was an error; that it should have been $4,100. Mrs. Jones testified that she then produced the record of the sales of poultry and eggs during the year 1928, and that Mrs. Lapicki examined it and said, “good enough for me.” It disclosed that such sales amounted to $3,568.94.
Mrs. Lapicki testified:
“Q. At the present time you are having a hard time on the farm and getting along, to make ends meet, aren’t you?
“A. Yes.
“Q. All the farmers around you are having pretty hard times, aren’t they, right now?
“A. Yes, I think so.
“Q. And isn’t that the reason why you complained about Mr. Jones, in order to get some money back on your deal?
“A. No, we didn’t complain to him.
“Q. What is that?
“A. No, we didn’t complain to him we wanted any money back, that it was hard times.
“Q. Isn’t that the reason why you brought this suit, because you are hard-up over there and want to get some money out of Mr. Jones, isn’t that the reason you started this suit?
“A. Yes.”
It seems apparent from this record that, until the depreciation occurred, plaintiffs were satisfied with the purchase made by them. Mrs. Jones testified that when plaintiffs came to look at this property she said she didn’t care to sell it, and that when the error in the $5,100 was disclosed, Mr. Jones said, “Well, you can back out if you want to,” and Mrs. Lapicki said, “We don’t want to, we want it.” Mrs. Sewers, a daughter of the defendants, testified that she came to the farm to help her parents pack up preparatory to moving; that—
“It1 was on the back porch, and mamma says she was feeling quite bad because we had to move, and in fact she wanted them to back out, and my dad was there and Mrs. Lapicki was sitting on the back porch, and mamma said ‘well, we are going to pack up,’ and my dad said ‘Mrs. Lapicki,’ or ‘Nellie,’ is what he called her, ‘we are going to pack up, now if you want to back out, now is the time before we start packing.’ Mamma said ‘I wish you would.’ Nellie said she didn’t want to. ’ ’
While this is denied by Mrs. Lapicld, we think it worthy of belief.
Bnt to this claim of misrepresentation there is another defense. Plaintiffs entered into possession of this property on or about April 7, 1929. They cultivated the tillable land on the farm, and continued the poultry business thereon, until December, 1930, without complaint to either of the defendants that they had been deceived as to the income which could be produced therefrom. Mr. Jones frequently visited the farm during that time, and made purchases from the plaintiffs. At the end of the first year of their operation, they paid the interest due on the contract and $450 of the $500 payment then due. They paid the taxes assessed thereon for the year 1929. While it might be claimed that they did not during this time discover that they had been deceived by the misrepresentation of value, and if it be conceded that they had little knowledge of farming or raising poultry, yet the conclusion is inevitable that they had knowledge of the income which could be produced from operation of the farm and poultry business long before they made complaint relative thereto.
In Draft v. Hesselsweet, 194 Mich. 604, 607, it was said:
“This court has said again and again that if one has been defrauded he must complain of it promptly after discovering the fraud. ’ ’
See, also, Parkyn v. Ford, 194 Mich. 184; Roszczewski v. Jozwiak, 225 Mich. 670; Adams v. Grant, 247 Mich. 60; Hovey v. Plesum, 250 Mich. 650.
Their neglect to make complaint for so long a time may also be considered in its bearing upon their testimony as to the representations claimed to have been made. It is apparent that they were satisfied with the purchase made by them until informed by some of their neighbors that they had paid too much for the property. Their purchase at the time it was made was an unfortunate investment for them, as the value of the land and the income therefrom and from the poultry business decreased very markedly soon thereafter. But, in our opinion, the record discloses no reason for granting them the relief sought.
The decree entered will be reversed and set aside, and one may be here entered dismissing the bill of complaint, with costs to defendants. The cause will be remanded to the circuit court to determine the amount due on the contract and for the entry of a decree for its foreclosure as prayed for in the cross-bill of the defendants.
Clark, C. J., and McDonald, Potter, North, Fead, |Wiest, and Btjtzel, JJ., concurred. | [
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] |
Sharpe, J.
The plaintiff stored about 800 bushels of potatoes in the warehouse of the defendant cooperative association in the fall of 1929. ' He had paid therefor the sum of $1,465.65. In January, 1930, he spoke to the defendant Lytle, who was at that time the county agricultural agent, about the prospects of selling them. In March, plaintiff was called to the association office by Lytle. The defendant Menzies, the association manager, was also present. Lytle there exhibited a letter sent to him by Ira H. Zimmerman. The plaintiff testified:
“A. Mr. Lytle showed me that letter and said that he had done business with that man before, if I wanted to get that amount, $1,516, after everything was deducted, storage charges and selling charges, all told, if I wanted to sell to that man on open account I could receive that much money for the potatoes; and I then asked him if it was the best that could be done. He said it was. I said, ‘Then, sell the potatoes to Mr. Zimmerman, ’ which he said he would. He sat down and he figured it out three different times on three different pieces of paper and said every one of them came out the same figures, and finally he showed me one, and he said that was the best price they could get for them, $1,516 for the total amount of the potatoes.
“Q. Anything else occur at that time?
“A. He made the statement to me he did not want them sold through the Top O’Michigan Seed Growers, that they would have to be sold directly between this man Zimmerman and himself. Mr. Lytle said that.”
The defendant Menzies, called for cross-examination, testified:
“A. Mr. Lytle and Mr. Guggisberg talked about this particular letter.
“Q. What was said there, Mr. Menzies?
“A. Well, I think that Mr. Lytle explained to Mr. Guggisberg these potatoes would be sold through Mr. Zimmerman if arrangements could be made to properly do it, so the billing — the potatoes were to be shipped open billing.
“Q. That was not the usual way of shipping, was it?
“A. The seed company used to pass upon the shipments.
“Q. What was said about the price?
“A. I do not remember exactly the amounts or the prices that he did get, but ,1 think that Mr. Guggisberg ’s statement is. correct.
“Q. Was there a computation made there in regard to the amount that Mr. Guggisberg was to re ceive after payment of storage charge and handling and loading?
“A. I think $1,516 was mentioned at the time.
“Q. Whether or not that was the balance that Mr. Guggisberg was to have for his potatoes, is that your recollection?
“A. It is, as to the net amount owing to Mr. Guggisberg on that particular deal.”
The defendant Lytle, in his"own behalf, testified:
“A. Concerning this letter, I stated to Mr. Guggisberg that the market for certified seed potatoes had slid off, and whether or not it would be possible for me to help him get his money back, I did not know, but that this letter perhaps provided an avenue for the sale of these potatoes so he might get his money back.
“Q. What did he say?
“A. I asked him whether he cared to accept this order as a place for the marketing of his potatoes, knowing that they would have to be shipped on open billing, and he said, ‘As far as that is concerned,’ neither accepted or rejected it, but did make the remark finally, ‘Do the best you can, boys, if you are not able to make it, you will find me a good loser.’ * * * At the conference among the three of us, I did not tell Mr. Guggisberg he was to receive $1,516 in round numbers for these potatoes. There was no price mentioned.”
On cross-examination, he stated that “No price was set on the potatoes he had.” .He was then asked, “Was any figures mentioned?” and answered, “Tlie matter of $1,516 was mentioned.” A memorandum slip in the handwriting of defendant Lytle, showing how the sum of $1,516 was arrived at, was put in evidence. It appears that the Zimmerman letter referred to other potatoes. This fact was discovered by Menzies a few days later, and he advised Lytle about it, and the Zimmerman order was filled by the Top O’Michigan Seed Growers pursuant thereto. No information relative thereto was communicated to plaintiff by either Menzies or Lytle.
Plaintiff’s potatoes were afterwards shipped to parties in Detroit by the Top O’Michigan Seed Growers, and the amount due him was computed on a pool rate of the price secured on all the potatoes handled by the association. Plaintiff was paid $700 on account in a check of the co-operative association, and later, in July, a check of the seed growers ’ company for $475.32 was tendered to him by the defendant Lytle in full settlement of his claim, and refused by him. He was then for the first time informed that his potatoes had not been sold to Zimmerman. He thereafter brought this action to recover the balance claimed to be due him, and, on trial before the court without a jury, had judgment against all of the above-named defendants for $864.80, from which the defendant Lytle has taken this appeal.
Stress is laid upon the fact that Lytle had no business connection with either of the defendant companies, that he was not engaged in selling potatoes, and that what he agreed with plaintiff to do was but a voluntary act on his part, for which he was to receive no compensation. Plaintiff was not a member of either of these companies, and it does not appear that he had any information, or was in any way notified, of Lytle’s relation to them. He was permitted to store his potatoes in the warehouse of the co-operative association, and was liable for the storage charges when they should be removed. These and the charges for “handling and loading,” as testified to by Menzies, were taken into considera tion when computing the amount plaintiff should receive on the sale to Zimmerman.
It seems clearly established that, under the arrangement made, Lytle was authorized by plaintiff to ship his potatoes to Zimmerman. Plaintiff’s assent thereto in effect transferred his right to the possession of the potatoes to Lytle. An agency was thereby created.
“Loyalty to his trust is the first duty which an agent owes to his principal, and without it the perfect relation cannot exist.” McLennan v. Cole (syllabus), 224 Mich. 225.
“It is the duty of an agent to communicate to his principal facts relating to the business which ought in good faith to be made known to the latter”’ Michigan Crown Fender Co. v. Welch (syllabus), 211 Mich. 148 (13 A. L. R. 896).
“Ordinarily, where unforeseen conditions arise, the agent should notify the principal and procure additional instructions.” 2 C. J. p. 718.
“If the agency is gratuitous the agent will not be liable for a nonfeasance if he never entered upon the service expected of him; but if the agent once enters upon the execution of the business and any loss results from his neglect .or failure to carry out his instructions, he may be held responsible.” 2 C. J. p. 717.
Liability is not here predicated upon his nonaction or accident or mistake, but upon his neglect and: breach of duty. If a gratuitous agent, as he claims he was, it was surely his duty to inform plaintiff that shipment could not be made to Zimmerman, and his neglect to do so, when so advised by Menzies, was inexcusable. Plaintiff’s loss may be said to have been attributable thereto. There was then a market for these potatoes, and it may be assumed that, had plaintiff been so informed, he might have disposed of his potatoes to others for the net price fixed at that time. The record contains no other evidence of their then value. The price at which they were sold to the Detroit phrties in April does not appear in the record. That which plaintiff was offered therefor, as before stated, was the pool rate for all potatoes sold by the association for its members.
That Lytle realized he had breached the duty he owed plaintiff is apparent from his effort to induce plaintiff to settle for the check for $475.32 which he tendered to him. It is urged that it is unfair to Lytle to award a judgment against him for the full amount due plaintiff when the seed growers’ company has the amount of this check in its hands and it is admittedly due him. Lytle might have avoided this situation by the unconditional delivery of the check to plaintiff. ' Its application on the judgment is a matter of adjustment among the several defendants.
We are not here concerned with the liability of the other defendants. Lytle alone has appealed, and, in our opinion, the judgment rendered against him should be affirmed.
Clark, C. J., and McDonald, Potter, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
The contract which plaintiff here seeks to have canceled and declared null and void is similar in all respects to that entered into between Mary Fetters and Johnston in Fetters v. Wittmer Oil & Gas Properties, ante, 310. In that case it was held to be void as against public policy. The decree of the trial court holding it to be null and void in this case is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Reid, C. J.
Plaintiffs filed their bill of complaint to rescind their conveyance of lands for fraud, and also prayed for cancellation of conveyances by the grantee, defendant Stewart Oil Company, to third parties (herein made defendants), for an accounting and for injunctive orders. From a decree for defendants, plaintiffs appeal.
Plaintiff Jack Butler (referred to herein as plaintiff) has lived in Hart, Michigan, for about 40 years. For most of his life and until recent years he has been a blacksmith. Since 1947, he has had arthritis and other ailments. Since quitting’ blacksmithing he has been farming and he has owned farms in Oceana county. He has been a horse' trade! and has dealt in real estate, fur, fruits and “everything mostly,” and has kept himself informed as to what has gone pn in the vicinity of Plart. About 1944 and 1945 plaintiffs bought for $900 the lands in question herein, 160 acres located north of Hart, the soil of which was poor for farming. Plaintiffs have not farmed very, much on it.
In January, 1947, plaintiffs made an oil and gas lease with defendant Carter Oil Company, giving Carter Oil Company royalty interest in oil and gas produced on the 160 acres in question, plaintiff to receive 50 cents per acre and {- of the oil produced, if any.
Plaintiff Jack Butler testified lie rode out to the 160-acre farm in question on July 15,1947, and found some men drilling what plaintiff calls a core test or drill on his farm without permission of plaintiff and they failed to answer plaintiff’s question as to whether they struck anything. There is no proof that such drilling showed presence of oil. It was not done by defendant Stewart Oil Company, whose grant of royalty is herein complained of, but was done by Carter Oil Company under plaintiffs’ lease.
Plaintiff Jack Butler testified that on July 30, 1947, defendant J. Russell Stewart (representing the Stewart Oil Company) came to plaintiffs’ house ip. Hart and sought to buy plaintiffs’ fractional interest in oil royalty in plaintiffs’ 160-acre farm in question. On that day defendant Stewart produced and plaintiffs signed and delivered to defendant Stewart, as representing the Stewart Oil Company, a mineral deed conveying the entire mineral interests of the Butlers to the Stewart Oil Company and defendant Stewart delivered to plaintiffs a check for $2,000, the agreed consideration.
The record discloses that Mrs. Butler was' present at least during part of the conversation, and that after defendant Stewart had stated his proposition, in response to her husband’s question, she approved of the proposition. Mrs. Butler was not sworn as a witness. Plaintiff Jack Butler was evasive and not highly reliable as a witness.
Plaintiff claims that defendant Stewart on July 30, 1947, made the following 3 misrepresentations to plaintiff as showing the background of the fraudulent concealment of knowledge by Stewart of the “gas blow-out” hereinafter discussed.' Plaintiffs claim they relied and acted on said misrepresentations, i.e.:
1. That there was no oil or gas under plaintiffs’ land in question. Plaintiffs claim that there was in fact oil under plaintiffs’ lands in question and that defendant Stewart on July 30,1947, had information persuasive of that fact and that Stewart, having made statements as to absence of oil under plaintiffs’ lands, became obligated to disclose his information indicative of presence of oil. This representation is supported only by testimony of plaintiff J act Butler. It must be apparent that one seeking to purchase mineral rights does not do so if there is no possibility of the presence of such minerals. The Carter Oil Company having previously purchased an oil lease from plaintiffs, plaintiff Jack Butler must have had knowledge under all the circumstances shown in the testimony of the possibility of oil under his lands. This claimed misrepresentation is improbable, for otherwise Stewart would be in the inconsistent position of negotiating for an interest in what he in the same breath was saying did not exist. The testimony of J. Russell Stewart that he had no evidence there was any oil under plaintiffs’ lands seems the more plausible in the light of the entire record. We find such misrepresentation was not made.
2. That the Stewart Oil Company, whom defendant Stewart represented, allocated certain sums each year to buy royalties regardless of the fact that the money for the most part was merely lost in profitless investments. Defendant Stewart admits saying to plaintiff that his company went all over the State buying royalties in different parts of the State where they had no leases and where there was a concentration of leases and that “a lot of it went down the drain.” But plaintiff1-claims the statement by defendant Stewart of his company’s habit of buying such royalties was intended to and did conceal from plaintiff, defendant Stewart’s information and belief indicative of actual presence of oil on plaintiffs’- lands . in question.' Plaintiff .cannot-be considered as believing that the money that Stewart was paying him was purely a gift without any real consideration, or money merely handed out carelessly. Plaintiff is not supported in his claim as to Stewart making any misrepresentation in such particular. No deception is considered by us as proven.
3. That “most everybody behind you has sold to me,” meaning that almost every owner of lands between plaintiffs’ lands and “the lake” had sold to Stewart. It seems improbable that plaintiff was deceived or uninformed as to whether the owners back of him had made oil leases. We consider that plaintiffs have failed to prove this misrepresentation.
Plaintiffs claim that the misrepresentation by Stewart and his failure to disclose knowledge of a “blow-out” of a well drilled about July 13, 1947, by Carter Oil Company on the Thomascheski farm about lj miles from plaintiffs’ lands in question, of sufficient force to require that the hole be cemented in, which blow-out would be of interest to any oil man, completed the fraud. Plaintiffs claim defendant Stewart knew of this blow-out but concealed his knowledge and information on that subject from plaintiffs. There seems to have been an excitement among people living in the general neighborhood of Hart because of the blow-out.
Plaintiff denies that on the day he closed the deal with defendant Stewart, he,- plaintiff, knew anything about the blow-out. However, on cross-examination, plaintiff testified as follows : •
“Q. Between July 15, 1947 and July 30, 1947, wasn’t there some talk around the streets of Hart with respect to the Carter Oil Company having obtained a showing of gas on the Thomascheski farm?
“A. No, I don’t know.
“Q. You didn’t hear that at all?
“A. No.
“Q. Are you sure ?
“A. That was in 1947 ?
“Q. Yes, while the Carter Oil Company was core drilling.
“A. I don’t remember.
“Q. They called it a gas blow-ont. Yon heard about the—
“A. I heard there was something down in there. I didn’t pay much attention to it. I wasn’t interested in it.
“Q. People around the streets were talking about there having been a gas blow-out?
“A. Well, I had not been on the streets very much for 4 or 5 years.
“Q. You did hear something about it?
“A. I won’t say I did and I won’t say I didn’t.”
Witness Turnbull testified that the blow-out in question at the depth reached would not necessarily give any indication concerning lower levels, and, in effect, his testimony would indicate that when all the facts came to be known about the blow-out in question, the importance of the blow-out as indicating possible presence of oil on plaintiffs’ farm, disappeared.
Whatever the value of the blow-out was as indicative of the presence of oil on plaintiffs’ farm, plaintiffs failed to make affirmative proof of one element at least of the fraud they claim, which is plaintiffs’ own ignorance' of the blow-out. When plaintiff Butler testified he “won’t say” he did or did not hear about it before he dealt with defendant Stewart, he failed of his requisite affirmative proof. Plaintiffs thus fail to prove their main contention which concerns the blow-out.
The trial judge, among other things, said:
“A further finding is that no one knew at that time [i.e., at the time of the transaction complained of] that there was even a probability of oil under Butler’s land, and that J. Russell Stewart did tell Butler that his company had money allocated to buy mineral rights, or words to that effect. This, however, was not a false and fraudulent misrepresentation. J. Russell Stewart did further make some mention that he had bought other mineral deeds, and particularly from Spence, and that he expected to get more. This, in the opinion of the court, is more probable than the claim made by Butler that all behind or back of him had given mineral rights. This sounds to the court more like the language of Butler than that of Mr. Stewart. There was no fiduciary relationship between Butler and Stewart Oil Company or J. Russell Stewart at the time this purchase was made. Jack Butler knew at the time the mineral deed was given that core drilling operations had been going on in the Pentwater field, and particularly on his land, as he had been there and actually seen the same in operation, and he had made an unsuccessful effort to obtain information in regard thereto. * * *
“The last and final stand taken by the plaintiffs that the failure of J. Russell Stewart to disclose to Butler the rumors he had heard about the ‘blow-out’ cannot be said to be the concealment of a material fact. * * *
# “The plaintiffs have failed to meet the burden of proof of establishing fraud by a preponderance of the evidence that will entitle them to a decree for an annulment of the mineral deed executed on July 30,1947, or for any other equitable relief against any of the defendants.”
A careful reading of the record convinces us that the trial judge arrived at the correct conclusion. The decree appealed from is affirmed. Costs to plaintiffs.
Boyles, North, Dethmers, Btjtzel, Carr, Bushnell, and Sharpe, JJ., concurred.' | [
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] |
Butzel, J.
In 1945, the State highway commissioner, herein referred to as the commissioner, the Wayne county board of road commissioners, herein referred to as the county, and the city of Detroit entered into a contract for the construction of 2 limited access highways, herein referred to as the projects, within the city of Detroit. One project, known as the John C. Lodge Expressway, was to begin a short distance from the Detroit river, near Woodward avenue, and run in a more or less northerly and northwesterly direction into a divided 8-lane highway in the northwestern part of the city. The other project, known as the Edsel Ford Expressway was to run in an easterly and westerly direction through the center of the city, and at each end into wide expressways. As of December 31, 1950, some $42,000,000 had been expended for the highways. The 3 participating units had contributed a total of $5,000,000 annually and Federal aid comprised the balance. At the rate of progress under the 1945 contract, it was estimated that it would take an additional 15 years to complete the projects which were being built in sections as the money became available, and there was no provision for borrowing money to expedite the construction.
At the 1950 extra session of the legislature, Public Act No 22, an amendment to PA 1941, No 205 (CL 1948, § 252.56 et seq. [Stat Ann 1951 Cum Supp § 9.1094(6) et seq.]), was enacted. The entire act, as amended, shall herein be referred as PA 1950, No 22, supra. This act, which shall hereinafter be discussed' in more detail, authorized the commissioner to enter into a contract with any county, city or village for the construction of limited access highways to be financed through the proceeds from the public sale of bonds. The act provides that the State, county and city or village should share the costs. It authorizes these units to make an irrevocable pledge of sufficient moneys to pay the bonds, but very carefully limits the nature of the pledge. The act provides that the pledges shall not be a general obligation of the State of Michigan or of the contracting-counties or cities, but shall be payable solely from the allocations to the units from the State highway fund.
On April 17,1951, under the authority of PA 1950, No 22, supra, the 3 plaintiffs herein, the commissioner, the county, and the city, entered into a contract, referred to in the pleadings as exhibit “A”, for the completion of the projects and the financing thereof. Exhibit “A” provides for the issuance of $80,000,000 in bonds payable in serial annual instalments beginning October 1, 1955, with the final payment to be made October 1, 1976, and also semiannual interest on all bonds issued and outstanding at the rate of 21 per cent, beginning October 1, 1951.
We briefly refer to some of the pertinent clauses of exhibit “A”, which is dated April 17, 1951, and has been duly signed by all parties thereto, with the exception of defendant. It provides for the issuance of $80,000,000 of bonds to defray the cost of completing the 2 projects which it describes in some detail. It states that it follows the provisions of PA 1941, No 205, as amended by PA 1950, No 22, supra. In the payment of interest and principal of the bonds, the State highway commissioner agrees to pay 50%, or $2,500,000 a year, and the other 2 plaintiffs each agree to pay $1,250,000 a year, or 25% a year, for interest and serial payments on the bonds. Each of the plaintiffs irrevocably pledges such annual sums from their share of State highway fund to meet the interest and serial payments on the bonds, and to make the payments to the State treasurer who was made the fiscal agent to pay such amount. It further provides that the State highway commissioner may make additional pledges or pledge within the limits permitted by PA 1950, No 22, supra, which pledge or pledges shall be on a parity with that made under exhibit “A”. There is a further provision that the county’s pledge is subject to a prior one made under the provisions of PA 1943, No 143 (CL 1948, § 141.251 et seq. [Stat Ann 1949 Cum Supp, §9.130(1) et seq.]), which provides for the issuance of weight tax anticipation notes.
The contract provides for the method of collection in case of default by the parties or any of them. It further states that all Federal funds received on account of the project shall be used for the redemption of bonds in a prescribed manner. It is distinctly stated that the bonds are not a general obligation of the State but are payable only from the income received from motor vehicle taxes. The right is reserved to issue additional bonds of equal standing by the State if the moneys realized from the bond issue prove insufficient to complete the projects and sets forth the procedure by which this may be done. This requires also a supplemental contract by the 3 parties. Approval of the bonds by the Michigan finance commission, as provided for by PA 1933, No 94 (CL 1948, § 141.101 et seq. [Stat Ann 1949 Rev § 5.2731 et seg.]), is also required. Bids for the purchase of the bonds must be approved by the State administrative board, the common council of the city of Detroit, and the board of supervisors and the board of county road commissioners of Wayne county.
The contract further provides that the proceeds from the sale of the bonds shall be deposited with the State treasurer who is designated as fiscal agent for the parties for the payment of principal and interest of bonds and redemption if payments are anticipated before maturity dates. Many other important provisions in exhibit “A” we do not set forth as they are not involved in the discussion of the questions raised.
The purpose of decreasing the building time is evident. The need for the highways is not questioned. At present the Wayne county highway system is inadequate, the movement of vehicular traffic, raw materials and manufactured goods including armament for the government being retarded. Moreover, the construction involves the condemnation of city property, the building of a large portion of the highways below the level of surrounding property, the erection of bridges, the replacement of public utilities and their conduits, and other large costs. The estimates show that if the projects can be completed within 5 years the additional cost will be $134,000,000, but if 15 years are needed, plaintiffs contend in their brief that the cost will be much higher. It is also estimated that a contribution of $80,000,000 by the parties to exhibit “A” will be sufficient to complete the project, for additional moneys will be forthcoming from Federal aid, from condemned property which will not be immediately destroyed, and other sources.
Defendant is the controller of the city of Detroit. His signature is necessary in order to bind the city to exhibit “A”. He has refused to sign and the instant suit for mandamus is brought to direct him to affix his signature to all necessary documents. Defendant has raised several important questions in regard to the validity of the contract and the proposed bond issue and urges that a decision of the questions raised by him is proper before the bonds should be offered for sale. It is conceded that this is a test suit. In a way, it resembles a suit for a declaration of rights.
PA 1950, No 22, supra, limits the annual expendh ture by the commissioner from his share of the State highway fund to $3,500,000 for limited access highways, and exhibit “A” calls for the annual payment of $2,500,000, or five-sevenths of the maximum amount. Defendant claims that the contract thus casts a burden on the taxing power of the State by leaving a balance of only $1,000,000, or two-sevenths of the entire amount that can be used for limited access highways in other portions of the State should they become necessary. While at first glance it might seem unfair to expend such a large proportion of the maximum amount on the 2 projects, a more realistic approach appears from the stipulation of counsel as to the following facts. The preliminary count of the United States bureau of census for 1950 shows the population of Michigan to be 6,308,-794, of which number oyer one-third reside in Wayne county and of the latter over three-quarters in the city of Detroit. The population in the metropolitan district of Detroit is 2,973,019, or slightly less than one-half of the entire population of the State. The records of the State show the receipts from fuel and weight taxes from the entire State amounted to $86,998,723 for 1950, of which $33,010,149 was collected from Wayne county, the latter amount including $25,310,000 from the city of Detroit. The amount collected annually by the State for gasoline and weight taxes has been rapidly growing each year for the past 5 years, it being $58,780,361 in 1946, and $86,998,723 in 1950. There have been large increases in the amounts paid each year by the county of Wayne and the city of Detroit, the amounts received from the metropolitan district of Detroit increasing each year in a larger proportion. The number of vehicles registered in 1950 from the county of Wayne is more than one-third of the total- registrations for the State of Michigan'. These figures aré from records of years prior to 1951. They clearly indicate that with the number of vehicles registered from Wayne county, which includes Detroit, the congestion particularly in Detroit must be very heavy, and with the large amounts respectively paid by Wayne county for fuel and weight taxes, there is nothing unfair or confiscatory in the action of the State highway commissioner in agreeing to continue to appropriate a large amount, as in the past, for the 2 projects and making it possible to complete the projects within a much shorter time. It is true that the residents of the city of Detroit and Wayne county will largely benefit from the construction of the projects, but there will be a benefit to the State as a whole as well. Taxes in their various forms on industry will be used by the State without relation to their origin, and improved transportation will encourage new or expanded industry within the Detroit area. Michigan residents, who do not live in Wayne county, but who have reason to enter it for business or pleasure will reap the benefit of improved transportation. It will be an added inducement to out state tourists who must travel through Wayne county in order to reach the recreation areas of our State. Finally the improved transportation in and through Detroit is essential to national defense, a matter of importance to everyone.
The commissioner acted fully within his rights as defined by PA 1950, No 22, supra, and did not abuse his discretion. If other limited access highways should become necessary, there is still $1,000,000 left under the present law to use for such purpose.
The defendant contends that PA 1950, No 22, supra, violates Constitution of 1908, art 10, §§ 10, 11, which provides:
“Sec. 10. * * * The State may borrow not to exceed 50,000,000 dollars for the improvement of highways and pledge its credit, and issue bonds therefor on such terms as shall be provided by law.
“Sec. 11. No scrip, certificate or other evidence of State indebtedness shall be issued, except for such debts as are expressly authorized in this Constitution.”
PA 1950, No 22, supra, § 11, provides in part:
“The total'aggregate principal amount of bonds or notes outstanding at any one time issued under any of the provisions of this act shall not exceed $200,000,000.”
It is apparent that if the indebtedness authorized by PA 1950, No 22, supra, falls within the provisions of sections 10 and 11 the act is unconstitutional. In view of the special nature of the vehicular taxes and the form of the State’s obligation as set forth in PA 1950, No 22, supra, we do not believe that the debts authorized by it are prohibited by the Constitution.
At the outset, it has long been settled that revenue bonds issued by the State do not fall within the scope of sections 10 and 11, supra. Revenue bonds are issued to raise funds to purchase or construct utilities or other public structures and are payable only from the revenues received from the operation of the utilities or structures. The credit of the State is not pledged for their payment. Nor does the taxpayer pay for the structure, its cost being borne solely by those who use it.
In Attorney General, ex rel. Eaves, v. State Bridge Commission, 277 Mich 373, we said, quoting from California Toll Bridge Authority v. Wentworth, 212 Cal 298 (298 P 485) :
“The overwhelming weight of judicial opinion in this country is to the effect that bonds, * * * issued by States, cities, counties, * * * if such particular bonds or obligations are secured by and payable only from the revenues realized from a particular utility or property, acquired with the proceeds of the bonds or obligations, do not constitute debts of the particular State, * * * within the definition of ‘debts’ as used in the constitutional provisions of States having limitations as to the incurring of indebtedness.”
Revenue bonds are closely analogous to the bonds issued under PA 1950, No 22, supra. First, the funds used to pay the bonds authorized by PA 1950, No 22, supra, are not a part of the general funds of the State. Vehicular taxes, almost since their origin, have been earmarked exclusively for highway purposes, PA 1915, No 302 (CL 1948, § 256.1 et seq. [Stat Ann § 9.1431 et seq.]), PA 1925, No 2. In 1938, the Constitution of 1908 was amended to include article 10, § 22. This section provides:
“AH taxes imposed directly or indirectly upon gasoline, and like fuels sold or used to propel motor vehicles upon the highways of this State, and on all motor vehicles registered in this State, shall * * be used exclusively for highway purposes, including the payment of public debts incurred therefor.”
Vehicular taxes have often been termed privilege taxes for the use of the'State’s highways. They, are paid only by motor vehicle owners and users, and the moneys derived therefrom are used solely for the benefit of those persons who paid the tax.
Second, the obligations contained in the bonds are not the obligation of the State of Michigan. Section 12 of PA 1950, No 22, supra, †provides:
“Which bonds or notes shall not be general obligations of the • State of Michigan or of any of said issuing municipalities or counties, but shall be payable solely from the proceeds of the highway funds received and to be received, by said governmental unit from the State of Michigan derived from taxes imposed upon gasoline or other motor fuels, and on motor vehicles registered in the State or other funds pledged therefor.”
And section 14 provides :
“This act shall not be construed to pledge the full faith and credit of the State of Michigan with respect to any revenue bonds or notes issued under the provisions of the act.”
Exhibit “A” contains substantially similar provisions. The bondholders must look only to the revenue derived from motor vehicle taxes for their security. It is.clear from the context of article 10, §§ 10, 11 of the Constitution, that it was intended that a limit be placed only upon State indebtedness where the credit of the State has been pledged.
The legislature recognized the closely allied fea tures of the 2 different types of bonds, for in section. 11 of PA 1950, No 22, supra, it was provided:
“Which bonds or notes shall be issued in accordance with, and subject to the applicable provisions of Act No 94 of the Public Acts of 1933, as now or hereafter amended, being sections 141.101 to 141.139, inclusive, of the Compiled Laws of 1948.” (Known as the revenue bond act.)
For these reasons we find that the constitutional debt limitation will not apply to bonds issued under PA 1950, No 22, supra. '
This conclusion has been reached by a large majority of other courts which faced the same problem. In Gruen v. State Tax Commission, 35 Wash2d 1 (211 P2d 651), the court said (p 51) :
“The cases which we have considered state what must be held to be the unanimous view of the courts of this country upon the question of whether or not bonds payable out of a special fund, supplied by an excise tax, constitute a debt within the meaning of constitutional limitations fixing a general debt limitation. Based upon those cases and the cited cases decided by this court, which indicate an approval of the special fund doctrine and, further, that excise taxes are not controlled by constitutional provisions, we hold that the issuance and sale of bonds provided for in this act do not in any way constitute a debt against the State of Washington. The bonds provided for are to be paid from a special fund and solely from anticipated revenues to be derived from the sale of cigarettes. They are not, and cannot be, a general obligation of the State. In the event the anticipated profits do not materialize and the fund becomes exhausted, the purchaser of the bonds has no legal redress against the-State. He must look solely to the fund upon which they are drawn.
“Whether there would he a moral obligation to redeem the bonds is a matter which does not concern this court. It is sufficient to say there is no legal obligation to do so in the event the special fund is exhausted. In that event, there will be no additional tax burden by reason thereof; for, as just stated, there is no general obligation on the part of the State to redeem the bonds.”
See, also, Ajax v. Gregory, 177 Wash 465 (32 P2d 560); Alabama State Bridge Corp. v. Smith, 217 Ala 311 (116 S 695); State, ex rel. Richards, v. Moorer, 152 SC 455 (150 SE 269); Moses v. Meier, 148 Ore 185 (35 P2d 981); California Toll Bridge Authority v. Kelly, 218 Cal 7 (21 P2d 425).
The defendant further contends that although exhibit “A” irrevocably pledges funds for the payment of the bonds, the pledge is revocable either by subsequent legislation, or by constitutional amendment, and he claims that since the representation of irrevocability is not true, he should not be required to sign exhibit “A” authorizing the issuance of the bonds. The defendant relies upon Constitution of 1908, art 10, § 9; Keefe v. Oakland County Drain Commissioner, 306 Mich 503; Home Building & Loan Association v. Blaisdell, 290 US 398 (54 S Ct 231, 78 L ed 413, 88 ALR 1481); and Harsha v. City of Detroit, 261 Mich 586 (90 ALR 853).
It is not disputed that when the bonds are issued á contract will be made between the bondholders and the issuing authorities, and that the contract will include the provisions of all relevant existing laws.
“It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to and incorporated in its terms.” Von Hoffman v. City of Quincy, 71 US (4 Wall) 535 (18 L ed 403).
See Hammond v. Place, 116 Mich 628 (72 Am St Rep 543); City of Pontiac v. Simonton, 271 Mich 647. Thus the contract will include those acts which authorize the collection of taxes for the State highway fund.
The City of Quincy Case, sufra, also stands for the proposition'that bondholders are protected against subsequent legislation that will impair the contractual obligation evidenced by the bond. In that case the defendant city had issued bonds in order to purchase railroad stock. The Illinois act provided for a special tax to pay the interest on the bonds. Subsequent legislation limited the city’s taxing power, the effect being that the city could no longer pay the interest. The supreme court held that the subsequent act was invalid under article 1, § 10, of the United States Constitution as a law impairing the obligation of contracts. The court said:
“When the bonds in question were issued there were laws in force which authorized and required the collection of taxes sufficient in amount to meet the interest, as it accrued from time to time, upon the entire debt. But for the act of the 14th of February, 1863, there would be'no difficulty in enforcing them. The amount permitted to be collected by that act will be insufficient; and it is not certain that anything will be yielded applicable to that object. To the extent of the deficiency the obligation of the contract will be impaired, and if there be nothing applicable, it may be regarded as annulled. A right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist.
“It is well settled that a State may disable itself by contract from exercising its taxing power in particular cases. It is equally clear that where a State has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied. The State and the corporation, in such cases, are equally bound.' The power given becomes a trust which the donor cannot annul, and which the donee is bound to execute; and neither the State nor the corporation can any more impair the obligation of the contract in this way than in any other.
“The laws requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case. The act of 1863 is, so far as it affects these bonds, a nullity. It is the duty of the city to impose and collect the taxes in all respects as if that act had not been passed. A different result would leave nothing of the contract, but an abstract right — of no practical value — and render the protection of the Constitution a shadow and a delusion.”.
The rule of the City of Quincy Case, supra, has been consistently followed by the Federal courts. McGahey v. Virginia, 135 US 662 (10 S Ct 972, 34 L ed 304); W. B. Worthen Co. v. Kavanaugh, 295 US 56 (55 S Ct 555, 79 L ed 1298), and cases cited therein. See, also, Hammond v. Place, supra; 156 ALR 1265.
Nor would a constitutional amendment which had the effect of impairing the bondholder’s security be valid, for the supreme court has held that an amendment to a State Constitution is passing a law for the purpose of the contracts clause. Railroad Company v. McClure, 77 US (10 Wall) 511 (19 L ed 997); Russell v. Sebastian, 233 US 195 (34 S Ct 517, 58 L ed 912, Ann Cas 1914C 1282). The pledge is irrevocable as any statute or amendment to the Constitution impairing the obligation of the bonds would be-invalid insofar as it affected bonds theretofore-issued. There is no basis for the defendant’s objection in this regard.
The authorities cited by the defendant are not inconsistent with this conclusion. Article 10, § 9, of the Constitution of 1908, provides:
“The power of taxation shall never be surrendered or suspended by any grant or contract to which the State or any municipal corporation shall be a party.”
Defendant argues that an irrevocable grant would be a suspension of the power of taxation for future legislatures. The contract provides only that the bondholders receive payment from funds derived from the State highway fund. It does not provide how the money is to be collected for that fund. The legislature has retained full power to increase or decrease the taxes earmarked for the fund, or to create new sources of taxation. Of course, existing taxes earmarked for the State highway fund cannot be decreased to such an extent that the bondholders’ security is impaired, but subject to that exception, future legislatures retain full control over the tax laws of this State. See Harsha v. City of Detroit, supra, for a discussion of the subject.
The Keefe Case, supra, requires little discussion. The impairment of the obligation was caused by a decline in the value of the property which was the security for the bonds. No State action was directly involved. The Blaisdell Case, supra, is not in point. It involved an alteration of the remedy for the enforcement of private contracts only.
In the Earsha Case, supra, the plaintiff held a bond of the city of Detroit issued subject to an act which limited the amount the city could borrow to 8% of the assessed valuation of the real and personal property within the city. By a later act the amount the city could borrow was increased to 10% of the assessed valuation. The act was attacked on the ground that it impaired the obligation evidenced by the plaintiff’s bond, although, there was nothing in the agreement with the city that no future bonds would be issued or that the limit of bonded indebtedness would not be raised. The city could still collect sufficient moneys to pay the bond. • There was nothing in the act which rendered the bonds invalid, and in concluding that no impairment of the obligation had been shown, we recognized the authority of the City of Quincy Case, supra, and the Hammond Case, supra.
The Harsha Case, supra, also refutes the somewhat inconsistent contention of the defendant that exhibit “A” contracts with the bondholders that the maximum amount of the bonds outstanding under PA 1950, No 22, supra, will not exceed $200,000,000, and that the annual payments by the commissioner shall not exceed $3,500,000, and that this contract is illegal for it prevents future legislatures from altering these limitations. The defendant is not correct. The contract will have no effect on future legislatures insofar as raising or lowering'the authorized amount of indebtedness in PA 1950, No 22, supra, is concerned. This statement, again, is subject to the provision that the obligations of the bonds will not be impaired.
The defendant further contends that the contract constitutes a lending of the credit of the State in violation of Constitution of 1908, art 10, § 12, which provides:
“The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private.”
It is argued that the State’s pledge of $2,500,000 annually for 25 years is a grant of credit to the city of Detroit and Wayne county. We have already dis- ' cussed this contention in part, but for clarity, we shall briefly repeat. The bonds are not payable out of the general funds of the State; they are payable solely from the State highway fund. There has been no pledge of State credit as security for the bonds, and, therefore, there has been no granting of the credit of the State.
However, even if this were not true, we believe that the pledge would not violate section. 12, supra, for this is not truly a lending of credit. When a road used as a State highway is built anywhere in Michigan, it is always of prime importance to the area in •which it is located, but it is also beneficial to the entire State.
We do not know what proportion of the benefit of the highway will fall upon the balance of the State, nor is that figure ascertainable. However, the legislature has recognized that limited access highways will benefit the State as a whole and has provided for an apportionment of the cost. This is not a lending of credit within the meaning of article 10,. § 12.
A question is raised as to the priority the bonds authorized by PA 1950, No 22, supra, will have in the funds received by the commissioner, county and city from the State highway fund. PA 1950, No 22, supra, provides that each participating unit shall make an irrevocable pledge of the funds necessary to pay the bonds, which pledge shall constitute a first lien on funds collected from motor vehicle taxes held by the State treasurer and payable to the governmental unit as its share of the State highway fund. This portion of the act has been incorporated into exhibit “A”, which provides that if the participating unit defaults at any time in making its payment, the State treasurer shall withhold funds due to the unit from the State highway .fund until the default is cured.
However, at the time of the passage of PA 1950, No 22, supra, a statutory scheme of distribution was in effect toward a major portion of the funds in the State highway fund. CL 1948, § 207.119 (Stat Ann 1950 Kev § 7.309) provided for. the distribution of the gasoline and diesel fuel oil tax, and PA 1949, No 300, § 805 (CL 1948, § 257.300 [Stat Ann 1949 Cum Supp § 9.2505]), the vehicular weight tax. The' contents of' these sections need not be repeated in detail and reference is made to the acts for a fuller understanding thereof. It will be noted, however, that a portion of the funds were returned to the county and city for general highway purposes.
The problem of construction is not difficult. Since PA 1950, No 22, supra, is special and limited in nature, it was obviously not the legislative intent to repeal either PA 1949, No 300, § 805, or OL 1948, .§ 207.119. Moreover, the funds required under PA 1950, No 22 will constitute but a small fraction of the funds received annually by the State highway fund, so that the fulfilment of the specific provisions of PA 1950, No 22, supra, will in no way interfere with the intention expressed by the more general •acts. It is the usual rule of statutory construction that apparently conflicting statutes should be construed, if possible, to give each full force and effect. As we said in Rathbun v. State of Michigan, 284 Mich 521, 544:
“ ‘Statutes in pari materia are to be construed together, and repeals by implication are not favored. The courts will regard all statutes upon the same general subject matter as part of one system, and later statutes should be construed as supplementary or complementary to those preceding them.’ State v. Omaha Elevator Co., 75 Neb 637 (106 NW 979, 110 NW 874).”
Section 14 of PA 1950, No 22, supra, provides:
“This act, without reference to any other statute or to any charter, shall be deemed full authority for the purposes herein provided (emphasis added), and for the issuance and sale of bonds by this act authorized, and shall be construed as an additional and alternative method therefor and for the financing thereof, any provisions of the general laws of the State or of any charter to the contrary notwithstanding.”
It was quite clearly the intention of the legislature-to supplement the distribution scheme of the general acts. Bonds secured by pledges contained in exhibit “A” will be of first priority* subject only to-prior obligations, authorized by different acts and secured by the same funds.
Had the legislature not again spoken on the subject, the foregoing discussion would have been sufficient, hut in 1951 several acts were passed which materially affected the amounts of vehicular taxes and the method of distribution. We have reference-to PA 1951, Nos 51 through 55. Only PA 1951, No 51 need concern us. It created the motor vehicle highway fund, the successor to the State highway fund. Bather than provide for piecemeal distribution of the moneys in the fund, as had been done previously, the act set up a comprehensive system of allocation to the commissioner and the various subordinate governmental units. The act purports, to distribute the entire fund, but no reference is made to PA 1950, No 22, supra. We are now asked to determine whether PA 1951, No 51, supra, repealed PA 1950, No 22, ■supra, by implication either in its entirety or in part.
PA 1951, No 51, provides that all roads in the State shall fall into only 1 of 5 distinct classifications. They are State trunk-line highways, county primary roads, county local roads, major streets and local ■streets.
Briefly the money in the motor vehicle highway fund is allocated as follows:
A. 44% is allocated to the State highway commissioner to be used for the following purposes in the following priority:
1. Operating expenses for the State highway department.
2. Maintenance of State trunk-line highways.
3. G-eneral highway purposes including construction on State trunk-line highways.
B. 37% is allocated to the counties to be used for the following purposes, no priority being established :
1. $5,000 each year as salary for an engineer.
2. 75% of the balance for general highway purposes on county primary roads.
3. The remainder for county local roads.
C. 19% is allocated to the cities, 70% of which is to be used for the following purposes and in the following priority:
1. Payment of obligations assumed under the Dykstra act and under contracts allowed by this act.
2. For general highway purposes on the major •street system.
3. The remaining 30% to be used for general street purposes on the local street system.
This general act is inconsistent with PA 1950, No 22, supra, in at least 2 important respects. First, the county is not expressly authorized to expend money for the construction of a State trunk-line highway. This will be the classification of the projects upon their completion. The effect of this, if the act were strictly construed, would be to vitiate PA 1950, No 22, supra, and repeal it by. implication, for the county could no longer pledge an annual sum toward the completion of the projects. Second, it provides the priority in which the commissioner may spend his funds, and 2 classifications are placed before the construction of new highways. Since PA 1950, No 22, supra, had provided that bondholders should have first priority, it is contended that the act seemingly prevents the commissioner from entering into contracts under PA 1950, No 22, supra.
There are sections in PA 1951, No 51, supra, however, which show that the legislature was ■ treating PA 1950, No 22, supra, as supplemental and intended that it continue in effect regardless of the new distribution scheme.
First, PA 1951, No 51, § 21, supra, lists the acts and sections of acts which were repealed by PA 1951, No 51; this list did not include PA 1950, No 22, siipra.
Efecond, and most important, PA 1951, No 51, § 13 (f), supra, provides: .
“Incorporated cities and villages may provide for consolidated street administration and cities and villages may enter into agreements with the county road commission and with the State highway commissioner for the performance of street or highway work on any road or street within the limits of the city or village or adjacent thereto and for engineering in connection therewith, and such agreements may provide for joint participation in the costs where appropriate.”
It is evident from this section that the distribution scheme is not as inelastic as it may have first appeared, for in section 13(f) the legislature authorizes intergovernmental participation in street and highway costs on any road or street within a city. A fair construction of the act is that this section authorizes. the construction of limited access highways. However, we need not rest our decision upon this basis. Even if the section were construed so as not to include limited access highways, it is our conclusion that, under the authorities, PA 1950, No 22, supra, must be construed as supplemental to the broad scheme of distribution.
In Mayor of Port Huron v. City Treasurer of Port Huron, 328 Mich 99, the city of Port Huron attempted to raise money in order to complete a sewage-treatment plant system and garbage-disposal, plant. The city had been ordered by this Court to complete the system, and in order to do so within the time allowed, it authorized a $1,300,000 bond issue. The city treasurer refused to countersign the bonds claiming that they had not been approved by the electorate as required by PA 1909, No 279, as amended by PA 1941, No 60, a portion of the home-rule act. The city relied upon a special.statute passed in 1927, PA 1927, No 320 (CL 1948, § 123.241 et seq. [Stat Ann 1949 Cum Supp § 5.2661 et seq.]), which authorized the issuance of bonds without submitting the proposal to the electorate under the special circumstances present in the case. The subsequently passed act had seemingly repealed the 1927 act by implication, for no exceptions had been made to its terms. We said:
“Section 5, subd (g), of the home-rule act in its amended form was passed in 1941 (PA 1941, No 60), and this was subsequent to the enactment of PA 1927, No 320, but which act we do not believe was repealed by implication. PA 1927, No 320, supra, is a special act that applies to a situation as is presented in the instant case.
“In Boyer-Campbell Co. v. Fry, 271 Mich 282, 297 (98 ALR 827), we said:
“ ‘ “Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship or injustice; to favor public convenience and to oppose all prejudice to public interests.” 2 Lewis’ Sutherland, Statutory Construction (2d ed), § 490.’
“A special statute shall be given effect as an exception to the general statute in order to carry out the legislative intent. Board of Education v. Blondell, 251 Mich 528. "When a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention shall be considered as an exception to the general one. Attorney General, ex rel. Owen, v. Joyce, 233 Mich 619; Heims v. School District No. 6 of Davison Township, 253 Mich 248, and cases therein cited. Also, see Reed v. Secretary of State, 327 Mich 108. In Attorney General, ex rel. Owen, v. Joyce, supra, we held that the special .act providing that the board of supervisors .might fill vacancies in the office of road commissioner was not repealed by a later general act which provides for the filling of vacancies and appointments of county offices by the probate court, county clerk and prosecuting attorney, the later act not containing a repealing clause. We quoted the following:
“ ‘An act will not be construed to repeal or modify earlier legislation, if, giving such effect to the act, an apparent purpose would appear to disturb an established system of written law, covering a vital field in our system of government.’ 25 RCL, p 919.
“ ‘The principle that the law does not favor.repeals by implication is of especial application in the case of an important public statute of long standing, which should be shown to be repealed either expressly, or by a strong and" necessary implication.’ 25 RCL, p 920. * * *
“ ‘ “When a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention shall be considered an exception to the general one.” 1 Lewis’ Sutherland, Statutory Construction, p 532, § 275.’”
In accordance with the authority above cited, we must hold that PA 1950, No 22, supra, shall be considered as supplemental to the later general plan, just as it was supplemental to the earlier general plan, and that, the provisions of PA 1950, No 22, were unaffected by PA 1951, No 51, supra.
•The defendant raises questions as to the priority of bonds issued under exhibit “A” in relation to other bonds issued for highway purposes under this or other acts of the legislature. In this regard, our opinion is merely advisory, and regardless of the answer, the defendant would have no legal basis for his refusal to sign exhibit “A”. The validity of the bond issue under consideration presents the question of primary importance in the instant case.
Bonds previously issued, which will be payable from the same funds as the bonds in question, will, of course, retain whatever priority they may have had. This contingency presents no difficulty as the indebtedness of Wayne county is comparatively small, and the city of Detroit has no obligations payable from these funds. Future obligations, under different acts, payable from the same funds will not take priority.
All bonds issued under PA 1950, No 22, supra, will have identical priority insofar as the funds pledged by the commissioner are concerned, for the statute authorizes no priority between the several issues. This is recognized in exhibit “A”, which provides in section 6 that any additional pledges under the act “shall be on a parity with the pledge herein contained.” If additional bonds áre issued under this act for limited access highways in other counties or cities, the pledge of these .units will he secured hy funds allocated to those-counties or cities from the State highway fund and will in no way affect the pledge of Wayne county and the city of Detroit.
The defendant’s final contention is that exhibit '“A” imposes duties upon the State treasurer which •are not authorized by PA 1950, No 22, supra.
Article 6, § 1, of the Constitution of 1908, provides that the State treasurer shall “perform such duties as may be prescribed by law.” PA 1950, No 22, supra, does not specifically impose upon the State treasurer any duties with regard to this bond issue. Exhibit •“A”, however, designates the State treasurer as fiscal agent, and subject to his acceptance in writing (emphasis ours), imposes upon him the following •duties
As fiscal agent, all funds used in connection with the projects pass through the State treasurer’s hands. He is authorized to collect the quarterly instalments payable by the 3 participating units, and In the event that any of them should default, he is authorized, after notice in writing to the defaulting party or parties, to withhold the first funds due to the defaulting party or parties from the State highway fund until the default is cured. He is to receive .additional funds forthcoming from the Federal government for and in aid of the projects and the frinds paid by purchasers of the bonds, and deposit them in a specified manner. Pie is to designate banks and trust companies to act as paying agents for the bonds (subject to the approval of the administrative committee which is composed of officers of the 3 participating units), and to set up a separate deposit fund to be used for the payment of principal and interest on the bonds. A construction fund is also to be set up in banks recommended by the •commissioner. The amounts which are to be de- • posited in these funds, and the use to which they are-to he put is controlled by an elaborate contractual schedule in exhibit “A” over which the treasurer has no discretion.
He is directed to deduct each year the cost of the administration of the bond issue from the funds received by him. He is to register the bonds as to principal only, provide a $25,000 surety bond conditioned upon faithful performance of his duties, keep books of record and account, provide annual statements, and at the request of the administrative committee, purchase United States government obligations with temporarily surplus funds.
No provision is made in the contract for the appointment of a fiscal agent should the State treasurer refuse to act, an event that is not likely to occur.
Some of the duties of the treasurer under exhibit “A” arise by implication and fall within the constitutional scope of his office. Since he is the officer who will receive Federal aid funds for the State, CL 1948, § 249.1 (Stat Ann § 9.831), it will be necessary for him to pass these funds on to the proper fund, and exhibit “A” can properly direct him to do so. PA 1950, No 22, § 11, supra directs ■the participating units to pay their quarterly contributions to the governmental unit issuing the bonds. The bonds under the terms of exhibit “A” are issuéd by the State highway commissioner, and since the treasurer is the fiscal officer for the State, section 11 might fairly be construed as directing the State treasurer for purposes of safety and economy to receive and distribute the quarterly payments from the participating units. Finally, PA 1950, No 22, supra, provides that these pledges shall be a first lien on funds in the State highway fund, which is a sufficient authorization for the default provisions.
However, as to the balance of the duties under exhibit “A”, there is no express statutory obligation upon the State treasurer, and in the event that he refuses to act as fiscal agent, he cannot be forced to do so. To this extent the defendant is correct.
But this does not in any way affect the validity of the bond issue. The State treasurer has no discretion in performance of his tasks under exhibit “A”; and, although it is recognized that he would be a most covenient fiscal agent, there are many financial institutions which would be satisfactory in that capacity, and would be acceptable to the parties to exhibit “A”, and to the bondholders. The defect in exhibit “A” is a matter of form only, for in the event that the State treasurer does not accept his duties under exhibit “A”, the 3 participating units could easily choose another fiscal agent. They could not refuse to do so, for we would not allow any impairment of the bondholders’ security for the lack of an administrative officer.
There being no legal reason for his refusal to sign exhibit “A”, as required by law, the defendant is directed to do so, and a writ of mandamus will issue. No costs, a public question being involved.
Reid, C. J., and North, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred with Butzel, J.
Now called the motor vehicle highway fund. PA 1951, No 51 <CL 1948, §247.651 et seq. [Stat Ann 1951 Cum Supp §9.1097(1) et seg.]).
The supplemental record shows that Wayne county has $5,100,000 of such notes outstanding, the principal being payable serially in annual instalments of $1,020,000 each beginning May 1, 1952.
Adding CL 1948, § 252.62 (Stat Ann 1951 Cum Supp § 9.1094 [12]). — Reporter.
Adding CL. 1948, § 252.64 (Stat Ann 1951 Cum Supp §9.1094 [14]). — Reporter.
Adding CL 19-18, § 2§2.61 (Stat Ann 1951 Cum Supp § 9.1091 [11] ). — Reporter.
Adding CL 1948, § 252.64 (Stat Ann 1949 Cum Supp § 9.1094 [14]). — Reporter.
PA 1951, No 51 (CL 1948, § 247.651 et seq. [Stat Ann 1951 Cum Supp § 9.1097(1) et seq.]).
PA 1951, No 52, amended CL 1948, § 478.6 (Stat Ann 1951 Cum Supp § 22.565).
PA 1951, No 53, amended CL 1948, § 250.31 (Stat Ann 1951 Cum Supp § 9.881).
PA 1951, No 54, amended title'and CL 1948, §§ 207.102, 207.106, 207.108, 207.108a, 207.112, added CL 1948, §§ 207.118b, 207.121-207.134, repealed CL 1948. §§ 207.201-207.214 (Stat Ann 1951 Cum Supp §§ 7.292, 7.296, 7.298, 7.298[1], 7.302. 7.308[2], 7.316[1]-7.316 [14], 7.339 [l]-7.339[14]).
PA 1951, No 55, amended CL 1948, §§ 257.801, 257.810 (Stat Ann 1951 Cum Supp § § 9.2501, 9.2510). — Reporter.
CL 1948, §§ 250.31, 250.34 (Stat Ann §§ 9.881, 9.884) . — Reporter.
CL 1948, § 247.671 (Stat Ann 1951 Cum Supp § 9.1097[21]).— Reporter.
CL 1948, § 247.663 (Stat Ann 1951 Cum Supp § 9.1097[13]).— Reporter.
Adding CL 1948, § 252.61 (Stat Ann 1949 Cum Supp § 9.1094 [11]).- — Reporter. | [
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Sharpe, J.
This is an appeal by Robert W. Hodge, guardian ad litem, from an order of tbe circuit court affirming- an order of the probate court approving a mutual agreement for tbe settlement of issues raised by a petition for tbe construction of tbe will of George T. Ford, deceased.
Tbe facts which gave rise to tbe filing of tbe petition by tbe beneficiaries in tbe probate court, are briefly as follows: George T. Ford died testate on March 24,1942, leaving as heirs at law him surviving, Margaret Ford, widow, and 2 sons, Milton J. Ford and Melvin L. Ford. Milton J. Ford later died leaving surviving- a widow and a minor son.
Paragraphs 15 and 16 of Mr. Ford’s will, which give rise to this controversy, are as follows:
“15. On tbe death of my wife, Margaret Ford, or should Margaret Ford predecease me, I direct that ,my entire estate (excluding specific bequests and ex-1 eluding- tbe funds to be set apart for tbe education of my grandson, George T. Ford III, and my grandson, Douglas Milton Ford) to be divided into 2 equal separate trusts, 1 for the benefit of my son, Milton James Ford, and his issue by right of representation if Milton James Ford dies leaving issue, and 1 for the benefit of my son, Melvin Louis Ford and his issue by right of representation, if Milton [sic Melvin?] Louis Ford dies leaving issue. If either son dies without issue, his share will go to the survivor. My trustees shall have full power to invest and reinvest the corpus and surplus income from each of the above trusts and full power to sell, mortgage,' lease, or otherwise dispose of the corpus of said trusts. The net income from each of said trusts, not to exceed $100 per month, may in the discretion of my trustees be paid to each of the beneficiaries until the corpus is distributed. On partial distribution of the corpus the monthly payment to be diminished accordingly.
“16. As each of my sons becomes 30 years of age, the trustees shall turn over to him of the corpus of the trust fund set up for his benefit, when each of my sons becomes 35 years of age, an additional -J- of the trust fund set up for his benefit shall be paid to him, and when each of my sons becomes 40 years of age, the balance of the trust fund set up for his benefit shall be paid to him.”
The will was duly admitted to probate on May 4, 1942, and the executors therein named proceeded with the administration of the estate. The Ford estate consisted of both real and personal property, but, as of the date of the filing of the annual account of the successor testamentary trustee on November 22, 1950, all of the real estate, except the homestead on which the widow has a life interest, which formed any part of the corpus of the trusts had been disposed of and the proceeds was represented by cash or government bonds amounting to approximately $136,000. Since that date the entire corpus of the trusts set up in paragraphs 15 and 16 of the will has been held intact by the successor testamentary trustee, without any distribution or payments to any of the beneficiaries.
On January 5, 1950, Margaret Ford, widow, Melvin L. Ford, only surviving child of deceased, and Melvin L. Ford, as guardian of his minor son, Douglas Milton Ford, Helen M. Vanderbaker, surviving wife of Milton J. Ford, deceased son of George T. Ford, Helen M. Vanderbaker, administratrix of the estate of Milton J. Ford, deceased, and Helen M. Vanderbaker, guardian of George Thomas Ford, a surviving minor son of Milton J. Ford, filed a petition in the probate court praying for the construction of the last will and testament of George T. Ford. Petitioners asked that the testamentary trustee be forthwith directed to pay over all of the accumulated income and two-thirds of the corpus of the testamentary trust created for the benefit of Melvin L. Ford, inasmuch as he was then 35 years of age, and, to annually thereafter pay over all of the iiLGome therefrom, and, upon his attaining the age of 40 years, to pay him the remainder thereof. It also asked that the trustee be directed to pay to the administratrix of the estate of Milton J. Ford one-third of the corpus of the other trust, and all of the accumulated income to the date of his death, November 20, 1944, and, to pay the remainder of the income and corpus of the trust estate to the guardian of his surviving son, George Thomas Ford.
Following the filing of the petition, all of the parties in interest under the 2 trusts named in the petition, entered into a mutual agreement under CL 1948, §§ 702.45-702.47 (Stat Ann 1943 Rev §§ 27.3178 [115]-27.3178 [117]), which was filed in the probate court, under which they agreed it was not the intention of deceased that distribution of the trusts be suspended during the lifetime of his widow; and that the true construction of the will was in accord anee -with, the allegations set forth in the petition. Robert W. Hodge was appointed guardian ad litem to represent the interests, if any, of unborn children, and a hearing was had on the petition to approve the settlement agreement.
The probate court approved the mutual agreement which had been executed by all beneficiaries, and directed the testamentary trustee and guardian ad litem to join in the execution thereof. Under this order the testamentary trustee was authorized and directed to forthwith pay over all of the accumulated income and two-thirds of the principal of the trust created for Melvin L. Ford, and annually thereafter, to pay him the net income from the remaining one-third of the trust, and, upon his attaining the age of 40 years, to pay him the remainder. Should Melvin L. Ford die before attaining the age of 40 years, the trustee was directed to pay the residue of the trust estate to his lawful issue, by right of representation, and if he died without leaving issue, the same was to he paid to his heirs at law. The trustee was further directed to pay all of the accumulated income of the other trust estate to the date of death of Milton J. Ford and one-third of the principal to the administratrix of his estate, and to pay all of the remainder of the principal and interest to the guardian of his surviving minor son, George T. Ford.
No appeal was taken from the order by the testamentary trustee, hut • Robert "W. Hodge, guardian ad litem for any person or persons not in being who might have a contingent interest in the assets of the trusts, took an appeal to the circuit court, setting up the following reasons:
“(1) That said order is in effect writing a new will for the testator; and (2) that said order is based upon an erroneous findings of fact as to (a) provision made for the widow and (b) existence of spendthrift trusts; and. (3) that said order, under the interpretation placed upon the will of decedent materially reduces, and in a short period of years would annihilate, the contingent rights of unborn children.”
The cause came on for a trial, witnesses were sworn and at its conclusion, the trial court entered a judgment affirming the order of the probate court approving the mutual agreement for the settlement of issues raised by the petition for the construction of the will of George T. Ford, deceased, under which agreement the testamentary trustee was directed to presently distribute the assets of the 2 testamentary trusts.
The guardian ad litem appeals and urges that proof adduced by petitioners rests upon testimony as to matters equally within the knowledge of testator. It appears that during the hearing before the circuit court, witnesses were produced by petitioners who testified that testator stated upon numerous occasions that the sons were to receive their shares of the estate when they reached the ages of 30, 35 and 40 years respectively. No objections were made when this testimony was offered and the guardian ad litem cross-examined some of the witnesses.
In Hayes v. Skeman, 269 Mich 473, we had occasion to define an “opposite party” as one whose personal and financial interests, either immediate or remote, are in antagonism to the like interests of a protected party to the controversy. Donald Menzies, a friend of deceased for more than 30 years, testified that deceased told him he wanted to be sure the boys had passed the age of 30 years and would be old enough to have some brains to know how to handle the money he -was going to give them. We note that Mr. Menzies is not mentioned in' the
•will and is not an opposite party. See Shippee v. Shippee’s Estate, 255 Mich 35.
Gladys P. Comfort, niece of testator, Margaret Ford, widow of deceased, and Melvin Ford, son of deceased, testified that it was testator’s intention that each of the boys would receive one-third of the trust fund as they reached the ages of 30, 35. and 40 years.
In our opinion, there can be no objection to the testimony of Donald Menzies as he was not an opposite party and not prohibited by the statute from testifying. His testimony is sufficient to sustain the petition. Appellant’s failure to object to the testimony of the other witnesses and his cross-examination of them constitute a waiver of the statutory prohibition and their testimony was, therefore, admissible. See Howatt v. Green, 139 Mich 289.
In Geisel v. Burg, 283 Mich 73, we said:
“The general rule is that the administrator cannot waive the statute of limitations. McGee v. McDonald’s Estate, 66 Mich 628. In McHugh v. Dowd’s Estate, 86 Mich 412, we there held that an administrator may not waive the provisions of the statute which prohibits a claimant against the estate from testifying to facts,' tending to support his claim, which were equally within the knowledge of the deceased. An exception to this rule is where the administrator examines the opposite party, he has waived the benefits of the statute.”
See, also, Rehm v. Interstate Motor Freight Systems (CCA), 133 F2d 154.
The principal issue in this case relates to the time when the testamentary trustee- shall distribute the principal and interest from the trust fund. Paragraph 15 of the will directs that upon the death of deceased’s widow, his entire estate, with the exception of specific legacies, shall be divided into 2 equal separate trusts for the benefit of his 2 sons. Para graph 16 provides that as each of the sons attains the ages of 30, 35 and 40 years he shall be entitled to one-third of the corpus of the trust.
We note that the will was executed July 17, 1941; that deceased died March 24, 1942; that at the time of his death he left as heirs his widow, Margaret Ford approximately 54 years of age; one son, Melvin .L. Ford, born October 26, 1914; and another son, Milton J. Ford, born June 29, 1912, who died November 20, 1944, leaving as heirs at law his widow (Helen M. Ford Vanderbaker) and a minor son, George T. Ford, born September 16, 1935.
Appellant urges that there is no conflict between paragraphs 15 and 16 of the will; that paragraph 15 imposes a condition precedent upon the setting up of separate trusts, namely the death of Margaret Ford, while paragraph 16 directs distribution of the corpus of each of the separate trusts to be set up after the death of Margaret Ford.
In the interpretation of a will, effect must be given to the intent of the testator as gathered from the entire instrument and viewed in the light of the conditions existing at the time the will was made. See Kirsher v. Todd, 195 Mich 297; Detroit Trust Co. v. Stoepel, 312 Mich 172; In re Brown's Estate, 324 Mich 264.
A reading of paragraphs 15 and 16 of the will immediately challenges one’s attention to the question of when testator intended the trust provisions were to become effective, consequently, the court was within its rights in receiving evidence to determine this fact. There is competent evidence to affirm the ruling of the trial court that it was testator’s intention not to postpone the payments of income or principal from the trusts until the death of deceased’s widow.
Appellant also urges that paragraph 18 empowers, the trustee to withhold all payment of either income or corpus if the sons develop spendthrift or disorderly habits and paragraph 19 forbids assignment of any beneficial interest under the will, therefore, a spendthrift trust is created; and that the decision of the trial court would wipe out these provisions of the will.
Paragraphs 18 and 19 read as follows:
“18. Should either or both of my sons at any time or times develop spendthrift or disorderly habits, my trustees are authorized and empowered to withhold from such son any part of the income and any any part of the distributable corpus provided herein directed to be paid to any beneficiary.
“19.' The trustees shall not be permitted nor authorized to recognize any assignment of interest or principal herein directed to be paid to any beneficiary.”
We are not in accord with appellant’s theory that the trusts created are spendthrift trusts. In Rose v. Southern Michigan National Bank, 255 Mich 275, we held that spendthrift trusts cannot be terminated until their objects and purposes have been accomplished. We also stated the nature of a spendthrift trust by quoting with approval from Kessner v. Phillips, 189 Mo 515 (88 SW 66, 107 Am St Rep 368, 3 Ann Cas 1005):
“In order to create a spendthrift trust certain prerequisites must be observed, to-wit: First, the gift to the donee must be only of the income. He must take no estate whatever, have nothing to alienate, have no right to possession, have no beneficial interest in the land, but only a qualified right to support, and an equitable interest only in the income ; second, the legal title must be vested in a trustee; third, the trust must be an active one.”
In the ease at bar the legal title of the trust is vested in the trustee, but the beneficiaries take a .vested interest as the gift is of both principal and interest. While paragraph 18 gives the trustee certain discretion to withhold income in the event of future “spendthrift * * * habits,” yet such discretion ends when the beneficiaries reach the age of 40 years, at which time the trust ceases to exist. We note that the order entered by the probate court and approved by the circuit court retains jurisdiction for the purpose of. making any further orders to carry out the terms of the will and of the spendthrift provision as to unpaid portions of the trust. In our opinion the 2 paragraphs of the will do not •create a spendthrift trust.
Appellant also urges that the judgment entered by the trial court would immediately destroy five-sixths of the contingent possibility of a possible unborn child and would, in approximately 4 years, annihilate all contingent interests. Under the will of testator the rights of unborn children terminate when each of the beneficiaries reaches the age of 40 years. The judgment of the trial court protects these unborn children in accordance with the will of tes7 tator.
Appellant also urges that the trial court erred in not dismissing the petition for the reason that none of the petitioners objected to the admission of the will to probate but at a later date seek a construction of the will disregarding paragraphs 15, 18, 19 or 21 of the will. The record does not show that this issue was raised in the probate court or circuit court nor is it listed in appellant’s reasons and grounds for appeal. It is mentioned for the first time in. appellant’s brief. Moreover, on an appeal from the probate court to the circuit court the scope of the inquiry is limited to the issues raised in the probate court. The hearing in the circuit court is not de novo. See Patrick v. Howard, 47 Mich 40; In re Murray’s Estate, 219 Mich 70; In re LaFreniere’s Es- tote, 316 Mich 285. It also follows that on appeal to> the Supreme Court, issues not raised and disposed of by tbe trial court cannot be passed upon.
The judgment of tbe circuit court affirming the order of tbe probate court is affirmed, with directions to remand to tbe probate court for further proceedings. No costs are allowed as appellant acting in tbe capacity of guardian ad litem presented meritorious issues in good faith.
Reid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Bushnell, JJ., concurred.
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Dethmers, J.
Defendant Nettie Carroll owns and operates kennels housing a large number of dogs at a location about a mile outside the city of Grand Rapids. There are several commercial establishments in the immediate vicinity, including a beer tavern, a garage, a drive-in restaurant, a bait sales place, a trailer camp, a resort pavilion and a trailer sales and camp supplies business, and also, within ,a radius of a quarter of a mile therefrom, about 20 homes. Some of the occupants keep chickens, horses or dogs on and about their premises. Plaintiffs reside in the neighborhood. They brought this suit to enjoin operation of the kennels, charging that they constitute a private nuisance by reason of noisome odors and noises emanating therefrom. Prom decree dismissing plaintiffs’ bill of complaint, they appeal.
Testimony in behalf of plaintiffs strongly' supported their claims of nuisance. That adduced in behalf of defendant discounted plaintiffs’ claims and tended to show that defendant’s business was well conducted, did not unreasonably interfere with others in the neighborhood in their use and enjoyment of their homes and places of business and was no.t, under all the circumstances, a nuisance. After hearing all the testimony and inspecting the premises and observing the .manner of conclucting the business and the conditions there existing the trial judge concluded that plaintiffs’ claims and testimony as to noises and smells were exaggerated, that defendant’s recent installation of a gas incinerator for disposal of kennel refuse had remedied such condition relating to odors as may theretofore have existed, that the kennels were in excellent condition and very clean and that, as a matter of fact, the operation of the kennels did not constitute a nuisance.
Plaintiffs cite Ensign v. Walls, 323 Mich 49, and a number of other cases in support of their position. As we view it, however, the difficult question presented is one not so much of law as of fact. Did a nuisance exist as a matter of fact! The law applicable is not so difficult of ascertainment. No one is entitled, in every location and circumstance, to absolute quiet, or to air utterly uneontaminated by any odor whatsoever, in the use and enjoyment of his property; hut when noises are unreasonable in degree, considering the neighborhood in which they occur and all the attending circumstances, or when stenches contaminate the atmosphere to such an extent as to substantially impair the comfort or enjoyment of adjacent premises, then an actionable nuisance may he said to exist; and in applying these tests the question presented is one of fact rather than law. See 39 Am Jur, Nuisances, §§ 47, 53, 59, and People v. Wabash R. Co., 197 Mich 404, and Waier v. Peerless Oil Co., 265 Mich 398. In affirming the trial court’s finding of fact that a nuisance existed in the Ensign Case, this Court said:
“Plaintiffs’ witnesses testified to conditions of such character as to clearly constitute a nuisance. On the other hand, defendant and her witnesses claimed that the business was well conducted and was not so obnoxious in character as to interfere with plaintiffs or other residents in the neighborhood in the use and enjoyment of their homes. The trial judge inspected the premises of the defendant, and it appears from the record that his observations confirmed, in many respects at least, the proofs offered by plaintiffs with reference to the existing conditions. * * *
“As before stated, the testimony of the witnesses for the plaintiffs was not in accord with that given by the defendant and by others in her behalf. It was therefore for the trial court to weigh the conflicting'testimony and to determine the actual facts. In so doing he was aided by his own observations of the premises and the manner in which the business was conducted. In Northwest Home Owners Ass’n v. City of Detroit, 298 Mich 622, 643, it was said:
“ ‘We are appreciative of the fact that the trial court is in a much better position to pass upon the credibility of the witnesses than is the appellate court, by reason of the opportunity as well as the advantage of seeing and hearing the witnesses during their examination, direct and cross. The appellate court is limited to a perusal of the record. We should not, therefore, reverse or modify the decree entered herein unless we are persuaded that it is not in accordance with the just rights of the parties. Langdell v. Langdell, 285 Mich 268; Moore v. Moore, 231 Mich 209.’
“The principle stated in the language above quoted may well be applied in the case at bar. It is apparent from the record that the facts were gone into fully and carefully by the trial judge. The finding as to the facts was clearly supported by proofs and justified the conclusion that defendant’s business constituted a nuisance as to the plaintiffs. # * *
“Looking to all the facts and circumstances involved, the question invariably presented is whether the discretion of the court should he exercised in favor of the parties seeking relief.”
Similarly, in the instant case, we conclude that the trial court’s finding of facts, supported by competent evidence, ought not to be disturbed by us and, being unpersuaded that it is contrary to the just rights of the parties, that the decree ought not to be modified or reversed.
Decree affirmed. Costs to defendant Nettie Carroll.
Reid, C. J., and Boyles, North, Butzbl, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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Boyles, J.
-Plaintiff sued the defendant to recover damages for assault and battery. Her declaration! ■ alleges:
“That on the early morning of January 3, 1950, the defendant threw the plaintiff into a ditch on Saranac road near M-21 in the vicinity of Ionia and left her there to die.”
The defendant denied having molested her in any way, claimed that they both were drunk, and that he did not know how she got out of the automobile into the ditch. On jury trial plaintiff had a substantial verdict and judgment and the defendant appeals.
At the close óf the testimony for plaintiff and again at the close of all testimony the defendant moved for a directed verdict on the ground that there was no proof'that the defendant had assaulted of in any way harmed the plaintiff, beat her, or that he w.as liable for her injuries. The trial court reserved decision on the motions and-after verdict for plaintiff the defendant moved for judgment non obstante veredicto, which was denied, and■ judgment entered on the verdict. The controlling question on the appeal is whether the court should have set aside the verdict and entered judgment for the defendant on the ground, alleged.
The tale is a ‘sordid one/ Plaintiff was 37 years of age, divorced, with a 14-year-old daughter, and they lived with plaintiff’s mother. Plaintiff worked at a place with a bar, where food and intoxicating liquors were sold; The defendant was a married man with 2 children. For several months before the alleged assault and battery these parties had been associating together in what is admitted to be a “vicious and immoral’’ relationship. Much of their time together was spent in taverns and bars, getting drunk and otherwise consorting together, taking-various trips out of town, sleeping together at various places as husband and wife. Plaintiff’s counsel claims she did not know that the defendant was a married man, but the plaintiff in her testimony admitted that she knew it on December 12, 1949, on which day they left on a two-weeks’ trip to New York and other places in the East where they stayed "together. On December 27,1949, they were arrested by the local Grand Rapids vice squad at her apartment for immorally living together and both pleaded guilty. After that occurrence the defendant went hack to living with his family.
The time of the alleged assault is fixed as the night of January 3, 1950. Practically all of the defendant’s testimony as to what occurred is not disputed. About noon, the defendant by prearrangement went "to the home of plaintiff’s mother and got the plaintiff. They went to a tavern, drank 3 or 4 whiskies, went back about 2 o’clock to get plaintiff’s daughter, went south from Grand Rapids for a ride, drank beer in Middleville, went back to Grand Rapids to take the daughter to a show, then went to a tavern at 'Comstock Park near Grand Rapids where they stayed between 3 and 4 hours and drank whiskey during that time. They returned to Grand Rapids to pick up plaintiff’s daughter, thence- to a tavern about 8 p. m. where they had 2 or 3 whiskies. The daughter did not drink, they took her back to her grandmother’s home about 9 o’clock and then started out again, about 9:30 or 10 o’clock.. They -drove around, and the defendant' told plaintiff he wanted to call it quits, that he wanted to go back home to his family and forget the whole thing. Plain"tiff was excited, ’ threatened suicide, the defendant says she tried to jump out of the car going 50 miles an hour but was prevented by the defendant holding her around the neck. The plaintiff testified, however, that she did not at any time “try to jump from a moving automobile.” Plaintiff asked the defendant to get a divorce and marry her but he said it wouldn’t work. On the trip they drove around, first went west towards Coopersville, stopped at a tavern on the belt line about 15 miles west of Grand Rapids where they stayed until closing time about 12:30 or 1 o’clock. Prom there they went southeast, then south on the belt line, driving almost to Cutlerville,. 16 or 18 miles. She testified that he hit her oil the jaw “on the belt line.” This is the only testimony in the record which in any way. tends to show that the defendant assaulted, beat or molested the plaintiff.. He denies it happened. If it did, it was many miles distant from and some considerable time before the time and place where the plaintiff did leave the car and got into the ditch.
Prom the belt line near Grand Bapicls they went east on dirt roads and wound up near Saranac and M-21 about 2 or 3 o’clock in the morning. Defendant claims that the plaintiff had climbed over and into the back seat. This she denies. But she did not testify at all as to the manner in which she left the car and got into the ditch. Her failure to so testify is claimed by her counsel to be because she was unconscious from the time she was hit on the jaw while they were on the belt line. The record does not support' the claim. It is true that her power of speech was destroyed by her injuries in going into the ditch so that she had to testify by pointing to a chart. There is no question but that in some manner she got out of the automobile on a curve near Saranac into a ditch 15 or 18 feet deep and was seriously injured. The defendant, when asked how plaintiff got out of the car, testified:
“She was sitting in the front seat with me, and towards the last she got into the back seat, when she calmed down, she wasn’t so excited, and I thought maybe she was going to go to sleep or maybe she was mad at me and she wanted to sit in the back seat. So, she went in- the back seat of the ear then. * * *
“Q. Do you know how she got out of the car!
“A. I don’t know exactly, if she opened the door or the door opened, but I was driving along and the first thing I knew- she was out before I had a chance to stop. It was dark and I did stop the car and tried to find her, looked back, walked back a little ways, and I couldn’t see her, so I don’t know I must have got mixed up drinking and all that stuff. I started to drive away and I got a little ways down the grade, and I decided to stop again thinking she will come back in a little while, see. And when I stopped there, I must have fell asleep because the first thing I knew it was daylight when I woke up. I was drunk and so was she.”
On cross-examination, he testified:
“Q. And you say she jumped out of the back seat?
“A. I don’t know if she jumped or fell out or how it happened. I was driving and the first thing I knew she was out and the door open, and when I slowed the car down, it was dark, and quite a distance I stopped the car and I looked around and couldn’t see her anywheres.”
When he woke up in the morning his car was out of gas and he hunted up a’ friend in Saranac to borrow money to get gas. He heard some boys talking about a woman being found in a ditch, thought it would be the plaintiff, went to see Hudson Meyers, who he knew was an officer, and told him about being out with a woman and about her being missing. The officer suggested they go to the sheriff’s -office in Ionia and they did sp. There the defendant told the sheriff the same facts he later testified to at the trial, A charge of drunk driving was placed against him to hold him for investigation. Later the charge was dismissed and defendant released.
There is no doubt but that the plaintiff did in some manner get out of the automobile and land in a ditch 15 of 18 feet deep.. It had no water in it, but there was mud and stones. When found the next morning after daybreak, she was unconscious, seriously injured, her face, neck, arms and legs scratched.- and; bruised, both shoes off (one was found about 10 feet away). She was hospitalized, very-seriously-and permanently -injured. -If, there were any testimony at all as to whether plaintiff jumped from the .car at. that place, was thrown or pushed, or fell out accidentally, there might have been a question of fact to be submitted to the jury as to whether the defendant had assaulted her or pushed her out, which then would bring up a question for the jury as to the credibility of the defendant’s testimony. But the mere fact that plaintiff was in the automobile with the defendant, and later found in the ditch, badly injured,does not make a question of fact for the jury as to whether the defendant was guilty of any act as a result of which she went out of the car into the ditch. The doctrine of res ipsa loquitur is not. adopted im this State and plaintiff had the burden of proving that her injuries were the result of an assault and battery by the defendant. The record does not support that claim.
While the plaintiff did testify at some length as to her relationship with the defendant, admitted that she was in love with him, and that on December 12th, when they went to New York together, she knew that he was married, she did not testify that she was thrown or pushed from the automobile, or that the defendant assaulted or even touched her at that time and place. In the complete absence of any such testimony in the record, we are constrained to hold that there was no question of fact to go to the jury as to the defendant’s liability for an alleged assault and. battery, and defendant’s motion for judgment notwithstanding the verdict should have been granted.
Reversed for entry of judgment of no cause for action.
Reid, C. J., and North, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred. Butzel, J., did not sit. | [
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Btjshnell, J.
Plaintiffs Wernicke and others are owners of lots 1 to 16, inclusive, in Woodlawn subdivision on Sheridan Drive, fronting on Higgins lake in Roscommon county. They have appealed from an order of the circuit court, entered May 5, 1950, vacating an order entered April 6, 1948, closing the highway immediately in front of these lots. The 1948 order was the result of proceedings begun by petition of plaintiffs on October 10, 1947.
An amendment to the petition refers to a resolution of the road commission passed in 1937 in compromise settlement of the subject matter of 3 circuit court suits then pending against the commission, and which it is claimed had the effect of vacating that portion of Sheridan Drive in front of petitioners’ lots.
The record shows the entry of an appearance of the road commission on December 29, 1947, but does not contain its answer, if any, to the original or amended petition.
At the hearing on the amended petition on April 6, 1948, the trial judge said:
“You may have such an order. In fact, if the resolution [of the commission in 1937] mentioned anything, it [that portion of Sheridan Drive here involved] is already discontinued.”
The board of county road commissioners was represented at the April 6th hearing, but offered no testimony. On October-1, 1949 (18 months later), the board filed a motion for a new trial, assigning among other reasons:
(1) That it had not been heard in opposition thereto, although the portion sought to be vacated is a “State reward” county road within its “exclusive jurisdiction
(2) That the proceeding was not properly brought on for hearing, and the court was therefore without jurisdiction ;
(3) That the notice of the entry of the order or decree had not been served upon it; and that
(4) The public interest is not served thereby.
The claimed irregularities in procedure were denied by petitioners and the board was charged with failure to act within a proper time after the entry of the order.
The attorney who represented the board at the 1948 hearing testified that he was present at the hearing, and explained his failure to produce any testimony. He admitted being served with a copy of the court’s order several hours after the hearing.
The trial judge filed a written opinion on April 4, 1950, in which he stated that, prior to these proceedings, Sheridan Drive had been taken over as a county road under the. McNitt act (CL 1948, § 247.1 et seq. [Stat Ann § 9.141 et seq.]). He quoted the statute (CL 1948 §§ 247.41-247.46 [Stat Ann §§ 9.51-9.56]), under which the petition was filed, which reads in part:
“An act to prevent the abandonment, discontinuation or alteration of the course of any public highway which borders upon, or is adjacent to any lake, * * * by the public authorities of any township, village or city, until after the approval thereof by the circuit court.”
He held that, because such actions are confined to highways adjacent to lakes in townships, villages and cities, the court had no jurisdiction to enter an order vacating a county road under the statute invoked, and that his order of April 6, 1948, was void.
He declined to pass upon the effect of the board’s resolution of April 10, 1937, except to say that it “would not breathe vitality into a proceeding such as this where the court had no jurisdiction.”
The 1937 resolution is not too clear. It contains certain exceptions among which the board now claims is “the portion along the shore through Woodlawn subdivision.” This may or may not be .Sheridan Drive immediately in front of block 20 containing petitioners’ lots 1 to 16 inclusive. However, the question of the effect of the board’s 1937 resolution is not before us in this proceeding.
As stated by the trial judge:
“There is no inherent jurisdiction reposed in a circuit court to vacate a highway. Its power in that regard must be derived solely from a legislative grant.”
All township roads became county roads under the McNitt act (CL 1948, § 247.1 et seq. [Stat Ann § 9.141 et seq.}), and, according to its provisions, came under the control of the county board of road commissioners. Such taking of control was deferred for obvious administrative reasons, spread over a 5-year period at the rate of one-fifth each year. • This' act became effective September 18, 1931, and all township roads had become county roads by April 1,1936, which was prior to the filing of the petition herein.
PA 1909, No 283, ch 4, § 18, as amended by PA 1943, No 52 (CL 1948, §224.18 [Stat Ann 1947 Cum Supp § 9.118]), gives to the county board of road commissioners “sole and exclusive jurisdiction and control” over county roads. CL 1948, §§ 247.41-247.46 (Stat Ann §§ 9.51-9.56), apply only to highways in townships,. villages and cities, hence the court lacked jurisdiction in the premises.
Court Rule No 48 (1945) limits rehearings in equitable actions to 2 months from entry of final decree. Motions for new trials and motions in arrest of judgment must be filed and served within 20 days after filing of proof of service of. entry of judgment. (Rule No 47 [1945].) Neither rule was observed in the instant case, but neither prevents direct consideration of want of jurisdiction. See Huebner v. Winskowski, 246 Mich 77; General Motors Acceptance Corporation v. Ellar, 243 Mich 603, 607; and Orloff v. Morehead Manfg. Co., 273 Mich 62.
The court on its own motion properly raised the question of jurisdiction of the subject matter. Halkes v. Douglas & Lomason Co., 267 Mich 600.
The court was without jurisdiction to enter the order of April 6, 1948. It was therefore a nullity and void.
The order of May 5, 1950, setting aside the void order of April 6, 1948, was proper. It is affirmed. No costs having been allowed either party in the trial court, none will be allowed here.
Reid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Sharpe, JJ., concurred. | [
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] |
Bushnell, J.
Plaintiffs John B., Frederick M., and Elizabeth Kean Hammond are the owners of lot 40 (a 5-acre lot) of Hillwood Estates No 1, a subdivision of part of the northeast í of section 14, T 2 N, R 10 E, city of Bloomfield Hills, Oakland county, Michigan. A 3-story house, having upwards of 27 rooms, including 16 bedrooms, is located at about the center of this lot. This house contains approximately 200,000 cubic feet. It was built by plaintiffs’ father in 1923 on 83.6 acres of land.
Plaintiffs purchased the property from the father’s estate, after his death in 1940, for $62,352.93. Subsequent improvements in connection with opening roads and subdividing the property cost $14,527.05. The 83.6 acres were platted in 2 subdivisions, both being restricted to single residential dwelling purposes. Practically all of the lots have been sold at substantial prices.
The city of Bloomfield Hills was incorporated as a home-rule city on August 11, 1932. Prior thereto it had been a home-rule village. In 1931, the village adopted a zoning ordinance which, after some amendments, became ordinance No 49 of the city. Under this ordinance the property in question is classified in “single” dwelling district “A”. That district constitutes approximately 90% of the total area of the city. Under the terms of the ordinance the board of zoning appeals was permitted to vary or modify any of the restrictions “where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this ordinance,” provided, however, that such modification is “in harmony with their general purpose and intent, so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done.” A subsequent section provides that it is unlawful to change or enlarge the use of any building or premises or any part thereof until a “certificate of compliance” shall have been issued by the building inspector.
Plaintiffs sought such a certificate for the purpose of converting the house into a 4-family dwelling unit. This was refused by the building inspector. An appeal was taken to the board of appeals on the grounds that the house is of such proportion that it is no longer suitable and cannot be used for a single residence, or for any practical use permitted by the present dwelling district “A” classification; that the restriction imposed by the zoning ordinance results in an unnecessary hardship; that petitioners’ original request meets the full requirements of the plan to promote public health, safety and general welfare, and that such use would not he harmful to the surrounding property but would be in compliance with the spirit of the ordinance.
The board of appeals voted unanimously to uphold the action of the building inspector, and plaintiffs then sought a writ of mandamus from the circuit court. A number of property owners were granted leave to intervene as defendants. The trial judge denied plaintiffs’ petition.
There is some showing in the record that attempts have been made to use the property in conformity with the terms of the zoning ordinance, and that it appears impossible to obtain a tenant because of the cost of maintenance, the heating cost and taxes alone amounting to about $3,000 per year. The property has been listed for sale since 1943 with a number of real estate agents, but no offers have been received. Plaintiffs claim that a nearby railroad and a hunt' club lessen the desirability of this property for single residence purposes.
Defendants offered testimony which tends to show that the city of Bloomfield Hills constitutes an exclusive residential area within which are many well-known institutions, such as the Cranbrook Foundation and Institution, Christ Church, “probably the outstanding piece of church architecture in the United States,” and St. Hugo of the Hills, a Catholic Church of “substantial size and beauty.” Twenty-six of the 225 houses in the city, which has a population of 1,433, have a cubical content of over 100,000 feet, and are used as single-family residences. One large house with a cubical content of 110,600 feet has been altered by removing 42 feet from its center in order to make the property more usable and still comply with the ordinance.
As indicated in the opinion filed by the trial judge, the case involves the interpretation, construction and validity of the zoning ordinance. Incidental to a determination of this question we note that when the plaintiffs purchased the property from the estate of their father, they did so, as stated by the trial judge, “subject to and with knowledge of the existing single-family residential zoning regulation.” Plaintiffs did even moré; they took every advantage of this situation by platting and subdividing" the original 83.6 acres and sold lots burdened with a restriction, which they imposed, confining their use to single-family residences. Plaintiffs now question a situation which they helped to create, or at least of which they took full advantage.
The questions for decision, however, are whether the zoning classification is reasonable as applied to plaintiffs’ property, and whether the trial court was in error in denying plaintiffs’ petition for mandamus.
The law is well settled that zoning ordinances are constitutional in principle as a valid exercise of the police power. Austin v. Older, 283 Mich 667; Village of Euclid v. Ambler Realty Co., 272 US 365 (47 S Ct 114, 71 L ed 303, 54 ALR 1016). It is also settled law that a zoning ordinance must be reasonable and' that its reasonableness becomes the test of its legality. Moreland v. Armstrong, 297 Mich 32; and Hitchman v. Township of Oakland, 329 Mich 331.
Each zoning case must be determined upon its own facts and circumstances. Senefsky v. City of Huntington Woods, 307 Mich 728 (149 ALR 1433); and Hitchman v. Township of Oakland, supra. There is nevertheless a presumption in favor of the constitutionality of zoning regulations, and plaintiffs must sustain the burden of showing that such regulations have no real substantial relation to public health, morals, safety, or general welfare. Fass v. City of Highland Park, 321 Mich 156; Northwood Properties Co. v. Royal Oak City Inspector, 325 Mich 419; and Hitchman v. Township of Oakland, supra. .Furthermore, such an ordinance may not be held invalid unless the constitutional objections urged against it are supported by competent evidence or appear on the face of the enactment in question. Portage Township v. Full Salvation Union, 318 Mich 693, and Northwood Properties Co. v. Royal Oak City Inspector, supra. Such invalidity does not appear on the face of an ordinance merely because of a classification of certain property for use for single residences only. Northwood Properties Co. v. Royal Oak City Inspector, supra. The ordinance here in question is valid on its face.
The situation presented by this record is not one in which-the property is unfit for residential use, because it is located on the boundary of a residential area, adjacent to properties devoted to commercial or other uses. See City of Pleasant Ridge v. Cooper, 267 Mich 603; Pringle v. Shevnock, 309 Mich 179, 191; Ervin Acceptance Co. v. City of Ann Arbor, 322 Mich 404; and Long v. City of Highland Park, 329 Mich 146. See, also, 86 ALR 642 et seq. For authorities having to do with properties located within a use district, but where the nature of the land and surrounding development and construction are such that the property could not be used for residences, see City of North Muskegon v. Miller, 249 Mich 52, and Grand Trunk Western R. Co. v. City of Detroit, 326 Mich 387.
In the case here under consideration, plaintiffs’ land is located in the center of a high-grade residential district, and both their land and that surrounding are particularly adapted to residential purposes. The situation here is somewhat analogous to that in Austin v. Older, supra, and Northwood Properties Co. v. Royal Oak City Inspector, supra, where mandamus was denied.
In both the Ervin and Grand Trunk Cases, supra, this Court said:
“A zoning ordinance which renders property almost worthless is unreasonable and confiscatory, and therefore illegal.”
Such is not the situation in the instant case. Although it must be admitted that the market for houses of this sort and the demand therefor are very limited, it does not follow that the property in .question cannot be used for single-residential purposes. The testimony is to the contrary and indicates that there are a number of other large homes in the neighborhod being used in conformity with the ordinance.
In the light of the facts in this case, the ordinance, as applied to the present situation, is not unreasonable.
The trial judge properly denied plaintiffs’ petition for mandamus. The order of the trial court is affirmed, with costs to appellees.
Beid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Sharpe, JJ., concurred. | [
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Sharpe, J.
Plaintiff brought action against defendants Clinton D. Aldrich, Doris Aldrich and Lewis Manufacturing Company for the death of Walter E. Morris, Jr., a minor, age 7, who was killed on December 29, 1946, while playing on property owned by defendants Aldrich.
On December 29, 1946, defendants Clinton D. Aldrich and Doris Aldrich were the owners of a lot in the city of Lansing, Michigan, upon which they were building a house. Upon that date, the house had been partially completed. Piled upon the propert}?were various building materials, including lumber which had been .purchased from Lewis Manufacturing Company. The lot was accessible to children and for some time had been used by children as a playground. On or prior to the day in question, a load of lumber had been delivered and piled by an employee of defendant lumber company in such a manner that it could be dislodged easily. Plaintiff’s son came upon the property to play and while so playing the lumber fell upon him causing injuries, resulting in his death a short time later.
Plaintiff, after being appointed administrator of his son’s estate, commenced an action to recover damages for the death of his son. Defendants Aldrich filed a motion to dismiss plaintiff’s declaration for the reason that said declaration is insufficient in substance to state a cause of action either under the common law or the statutes of the State of Michigan against these defendants or either of them.
The cause came on for hearing on defendants’ Aldrich motion to dismiss. After arguments, the trial court entered an order dismissing plaintiff’s declaration, holding that if the child was a trespasser or licensee, defendants Aldrich were under no obligation to keep the premises safe for use of children as a playground. The court also held that a pile of lumber is not an “attractive nuisance.” The declaration was amended by adding an allegation that the boy was an invitee. All defendants filed separate motions to dismiss for the same reasons as in the prior motion. They were granted by the trial court.
Plaintiff appeals and urges that on a motion to dismiss, material allegations of fact in a declaration and the necessary inferences to be drawn therefrom must be considered as true as well as being viewed in the light most favorable to plaintiff; and that the amended declaration, including the following allegations, states a cause of action:
“That the said piles of lumber, building materials, and supplies negligently and carelessly piled and erected as aforesaid were open to access by said plaintiff’s decedent and readily accessible to him and within his reach; that the said lumber and other materials and supplies were piled in such a way as to make them especially attractive to the deceased and to other children, and that the said lumber and materials and other construction upon said property of the defendants Aldrich as an attractive and dangerous instrumentality did in fact attract the said deceased to danger and to his death as hereinafter set out. * * *
“That because of the circumstances aforesaid, and the fact that said deceased and other children, his playmates, had used the said premises as a playground previously for a considerable period, and had been permitted with the knowledge and consent of the said defendants, their agents and employees, to continue to use said premises as a playground after digging thereon had been commenced and construction was going on, the said deceased, at the time of the accident which caused his death, was an invitee as to whom the said defendants owed the duty of adequate supervision, warning, and exercise of due care in the piling and maintenance of said lumber, material, and supplies in such manner that said piles would not collapse and injure plaintiff’s decedent or other invitees; that, finally, deceased was not a mere licensee or trespasser, but an invitee as aforesaid to whom defendants owed a higher standard of duty than to a mere trespasser or licensee.”
The substance of these allegations contained in plaintiff’s amended declaration is that under the facts alleged the child was an invitee to whom defendants owed a higher standard of duty than is owed to a mere trespasser or licensee.
The amended declaration alleges that defendant lumber company delivered lumber and piled it upon the lot along with other building materials; that children played on the lot and in and about the building materials with the knowledge and consent of defendants Aldrich; and that no steps were taken to warn or protect the children. Nowhere in the amended declaration is there an allegation of an express invitation for the children to play on the lot.
The issue of whether the boy was an invitee is controlled by Peck v. Adomaitis, 256 Mich 207. In that case defendant operated a grocery store. On the morning in question she burned rubbish in the back yard and while in the store waiting on a customer, it was claimed that a boy 3 years and 9 months old came upon the lot, went near the fire and was severely burned. In affirming a judgment for defendant on a directed verdict, we said:
“Defendant was under no obligation to trespassers or licensees to keep her premises safe for use of children as a playground.
“Must the owner keep the land free from a bonfire which might attact discretionless and unattended children, or so guard his premises as to exclude such, children or attend to their- protection after entry? The boy was not an invitee.
“ ‘Neither silence, acquiescence nor permission, however, standing alone, is sufficient to establish, an invitation. A license may thus be created, but not an invitation. The infancy of the party injured does not change the situation. He enters as a trespasser, licensee or invited person according to the same circumstances which control in the case of an adult.’ * * * Bottum’s Admr. v. Hawks, 84 Vt 370, 384 (79 A 858, 35 LRA NS 440, Ann Cas 1913A, 1025).
“We quote the following apt statement from Thompson v. Railroad Co., 218 Pa 444 (67 A 768, 19 LRA NS 1162, 120 Am St Rep 897, 11 Ann Cas 894):
“ ‘It cannot be said that he invites or allures children because no such intention in fact exists, nor that he sets a trap for the innocent or unwary. The law does not impose a duty upon the landowner to take special precautions for a class of persons, a doctrine which,- if carried to its logical conclusion, would, as was said in Gillespie v. McGowan, 100 Pa 144 (45 Am Rep 365), “charge the duty of the protection of children upon every member of the community except their parents.” ’ ”
See, also, Ryan v. Towar, 128 Mich 463 (55 LRA 310, 92 Am St Rep 481) ; Petrak v. Cooke Contracting Co., 329 Mich 564; Holland v. Wisconsin Michigan Power Co., 296 Mich 668 (9 NCCA NS 570).
In Ryan v. Towar, supra, we said: “Mere toleration of a trespass does not alone constitute a license even, certainly not an invitation.” We do not find in plaintiff’s amended declaration facts pleaded which allege an implied invitation to the boy, consequently, the rule announced in Peck v. Adomaitis, supra, controls.
Plaintiff also urges that the pile of lumber was an attractive nuisance. In Holland v. Wisconsin Mich igan Power Co., supra, we held that a pile of poles on private property was not an attractive nuisance. In Ryan v. Towar, supra, we held that a water.wheel was not an attractive nuisance. In Peninsular Trust Co. v. City of Grand Rapids, 131 Mich 571, we held that a reservoir was not an attractive nuisance.
The declaration in the case at bar states that the lumber and materials were piled in such a way as to make them attractive to deceased and constituted an attractive nuisance. In our opinion the facts as set up in plaintiff’s declaration do not make out a case, of an attractive nuisance. In Holland v. Wisconsin Michigan Power Company, supra, we said: “No law or rule of care required'the poles to be so piled as to prevent injury to a child meddling with them.”
The judgment is affirmed, with costs to defendants.
Beid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Bushnell, JJ., concurred. | [
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North, J.
Plaintiff by his bill of complaint seeks relief in aid of an execution issued in a suit at law by lolaintiff against defendant Verna Roberts, also known as Verna Snell and as Blanche Snell, whom we designate herein as Blanche Snell. Sade B. Roberts and Moncie A. Roberts are 2 other defendants in the instant suit. The execution was return unsatisfied and this suit in equity followed. Answer to the bill of complaint was filed by defendant Blanche Snell and also by defendant Moncie A. Roberts. Default was entered against defendant Sade B. Roberts. The defendants who answered: denied the material allegations of plaintiff’s bill of complaint, which will be noted more fully hereinafter. At a pretrial hearing defendant Blanche Snell was granted leave to amend her answer and to file a cross bill. Plaintiff moved to dismiss the cross bill filed by Blanche Snell, assigning’ as one of the reasons in support of his motion the following: Res judicata, in that the issues presented by the cross bill had been previously litigated in the suit at law between himself and cross-plaintiff herein. Plaintiff’s motion to dismiss the cross bill of Blanche Snell was' heard and granted. This appeal by Blanche Snell followed.
Appellant contends tbat tbe allegations in ber cross bill were sufficient to justify granting to ber the relief sought, wbicb was vacating and setting-aside a $1,500 default judgment plaintiff bad obtained against her evidently on tbe ground of breach of ber purchase contract, tbat plaintiff be permanently restrained from taking any action to collect tbe judgment, and tbat cross-plaintiff be decreed recovery from cross-defendant of an amount of money wbicb she bad paid to him incident to tbe purchase of bis vendee’s contract interest in certain Detroit real property.
In general, tbe factual background of this litigation is as follows: Plaintiff, Eddie Floyd, possessed a contract vendee’s interest in certain Detroit real property of wbicb be wished to dispose. Cross-plaintiff, Blanche Snell, purchased from cross-defendant bis contract interest and made a down payment of $700. She also agreed to assume and pay a mortgage outstanding against tbe property in the sum of $1,100. In ber cross bill she alleges tbat in purchasing tbe property she relied upon tbe representation of cross-defendant tbat tbe building- on tbe purchased property, then occupied by 3 separate tenants, was a 3:family structure and was yielding an income of $150 per month; tbat in reliance upon such representations cross-plaintiff purchased the property and made tbe down payment of $700; tbat very shortly thereafter cross-plaintiff was informed by tbe tenants tbat tbe structural alterations, by wbicb an attempt to convert tbe property from a single dwelling to a 3-family structure, were in violation of lawful regulations, and tbat the building department bad so notified tbe tenant occupants, “all of which (being true) was dishonestly and fraudulently concealed by tbe cross-defendant from this cross-plaintiff and that such concealment on the part of said cross-defendant was for the dishonest and fraudulent purpose of misleading cross-plaintiff and to thereby fraudulently induce her to purchase said premises and that the said cross-defendant throughout the entire transaction knew that only one family could be permitted to occupy said building and that the other 2 families would be required to vacate the premises and that instead of receiving an income of $150 a month from said property, cross-plaintiff would only realize $50 a month.?’ Fred Macey Co. v. Macey, 143 Mich 138 (5 LRA NS 1036). And cross-plaintiff further alleges in her cross bill that when she became informed of the above-stated facts she asked cross-defendant to cancel the contract sale of his interest in the property to her, to return the money she had paid to him, and to release her from her agreement to pay the $1,100 mortgage; but cross-defendant refused to cancel the transaction except ■on condition she would waive return of the $700 down payment. Cross-plaintiff also alleges that shortly after the purchase 2 of the tenants vacated the property, reducing the income therefrom to $50 per month, in consequence of which cross-plaintiff was unable to keep up her contract payments and she thereupon assigned her interest in this property to defendant Moncie A. Roberts, from whom she had borrowed $400 to enable cross-plaintiff to make the $700 down payment to cross-defendant.
In his bill in aid of execution plaintiff, Eddie Floyd, alleges that the conveyance or assignment by Blanche Snell to Moncie A. Roberts of her interest in a described parcel of real estate, and also a like transfer by Blanche Snell of her interest in another described parcel to defendant Sade B. Roberts, were without consideration and with the sole purpose of defrauding creditors of defendant Blanche Snell. It is these 2 parcels upon which cross-défendant has levied.
As above noted, one of the grounds asserted by cross-defendant in support of his motion to dismiss the cross bill is res judicata of the validity of the $1,500 default judgment which in the suit at law was rendered in favor of cross-defendant. It is this judgment cross-plaintiff now seeks by her cross bill to have “vacated and set aside and held for naught.” In support of her claim to this equitable relief cross-plaintiff relies upon the alleged fraud of cross-defendant above outlined.
But the record discloses that shortly subsequent to judgment in the suit at law cross-plaintiff, Blanche Snell, made a motion therein that her default be set aside and a new trial granted. So far as disclosed by the instant record she did not assert in support of her motion the alleged fraud now asserted in her cross bill. Instead, she relied upon her claim that she was not served with process in the law case. The trial court heard her motion, at which hearing testimony was taken including that of the officer, who had made return of personal service on Blanche Snell. The motion was denied. It was renewed and again denied. No appeal was taken by Blanche Snell. This resulted in a final determination that' Blanche Snell was served with process in the suit at law.
“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.” Dodge v. Detroit Trust Co., 300 Mich 575, 596.
We know of no reason why Blanche Snell in her motion to have the default set aside and for a new trial,’as’a matter of appealing to the discretion of the trial judge, might not have then asserted the claim of fraud now relied upon in her cross bill, and had she appeared in the suit at law and’contested plaintiff’s right to recover she might have then asserted as an affirmative defense her claim of fraud;, and in across action asserted a right to recover from plaintiff the money'paid to him’by her. Under the circumstances there is no justifiable reason for concluding that the above determination of the trial judge in the suit at law was not res judicata of the validity of the judgment which cross-plaintiff now seeks to have “vacated and set aside and held for naught.”
Dismissal of the cross hill by the circuit judge is affirmed, with costs to appellee.
' Reid, C. J., and Boyles, 'Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred. Butzel, J., did not sit. | [
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Boyles, J.
Plaintiffs have invoked the aid of the chancery court to set aside an executory contract for their purchase of a restaurant in Hamtramck, cancel their obligations to pay, enjoin the defendants from enforcing a promissory note for $450 given partly in part payment and partly for rent, for an “accounting” of plaintiffs’ damages, and a lien on the property therefor, on the ground that the defendants had been guilty of misrepresentation and fraud inducing plaintiffs to enter into the purchase. After hearing, the trial court concluded that the defendants had induced plaintiffs to enter into the contract by misrepresentations and fraud, entered a decree for cancellation of the contract, enjoined collection of the note, allowed plaintiffs $1,600 for their “damages,” and cancelled the note. The defendants take general appeal; and plaintiffs cross-appeal claiming that the “judgment” in their favor should have been for a much larger sum.
As "briefly as possible, the facts are as follows:
On January 7, 1947, defendant Chester Prokop purchased the restaurant from the then owner, procured-an assignment of the lessee’s interest in the lease, made some improvements and repairs and installed some further equipment. He opened for business on February 4th, and on February 16th, being dissatisfied with .the business, listed it for sale with a broker. During that interim he did not obtain a restaurant license until February 11th, and then only on a temporary basis on condition that he remove the wallpaper and paint the walls. On February 26th plaintiffs entered into the agreement to purchase which is here involved, and went into possession. On March 15th the restaurant was closed by the municipal authorities, the restaurant license having been refused or revoked for failure to make the improvements. On the same day, defendant Chester Prokop sued plaintiffs to collect the promissory note. Oh March 19th plaintiffs filed their bill of complaint against Chester Prokop for cancellation, claiming rescission on the ground of misrepresentation and fraud, followed on May 9th by filing an amended bill adding Mary Prokop as a defendant and setting up additional grounds for relief. Plaintiffs sought to restrain enforcement of the promissory note, and “that the agreement heretofore entered into between the parties be set aside and declared null and void and that an accounting be made of the damages sustained by the plaintiffs by reason of the fraudulent representations of the defendants and that such amount be made a lien upon the restaurant in question, such lien to be foreclosed in accordance with law.”
In the meantime (on April 17th), the court had entered an order requiring plaintiffs to deposit $210 per month with the clerk of the court pendente lite, $150 per month of which was for rent,-, ordered the defendant to comply with the demand of the authorities as a condition to obtaining a restaurant license, and temporarily enjoined the defendant from disposing of or collecting the note. Subsequently, the court properly denied a motion by plaintiffs to transfer the case to the law side of the court, mainly on the ground that plaintiffs had sought and already obtained injunctive relief, and had added as a defendant Mary Prokop (Chester Prokop’s mother) who was not a party to the contract of sale.
“Where plaintiff asked for equitable relief by way of cancellation of contract, accounting, and injunction, and received equitable relief by securing and continuing in force temporary injunction, and finally accounting-was had, its motion to transfer cause to law side of court on ground that, as case then stood, nothing except money decree was sought, was properly denied.” Moon Brothers, Inc., v. Equipment Finance Corporation (syllabus), 255 Mich 359.
See, also, Kundel v. Portz, 301 Mich 195.
After the required wallpaper removal and painting had been done by the defendants, plaintiffs reopened the restaurant, sometime about the middle of April, and operated it during the pending of the litigation until February 5, 1949, making monthly payments to the clerk of the court totalling $1,290 (which is still impounded by the court) in addition to $150 per month for rent. On the above date plaintiffs “abandoned” the restaurant, the property and business, left it in the building on which the defendant Chester Prokop had a lease, and the defendants took possession. Subsequently, the defendants removed the equipment and used it to open another restaurant, which they subsequently sold, without apparent loss as to the value of the property. The instant case was not finally heard by the court until November, 1949, after tbe above events had taken place.
Appellants claim tbat tbe trial court should have dismissed tbe case as to defendant Mary Prokop. Tbe record shows tbat Mary Prokop furnished most of tbe money for tbe original purchase of tbe restaurant by her son, first brought tbe proposed sale to tbe attention of plaintiff Lash, personally made misrepresentations upon which Lash relied, and actively participated in tbe business and its sale, and received plaintiffs’ down cash payment. Tbe court did not err in refusing to dismiss as to her.
Appellants also argue tbat tbe court should have excluded tbe testimony of one W. Roy Schooler who testified as to tbe value of the restaurant. Tbe witness was an auctioneer and appraiser; bad appraised, bought and sold restaurants for over 20 years, made appraisals for bankruptcy courts and banks, and had taken an inventory of tbe restaurant in question. His testimony as to the value of tbe property in 1947 and 1949 was admissible, bearing on tbe question of misrepresentation and fraud.
Tbe circuit judge found as a matter of fact tbat tbe defendants bad made material misrepresentations of essential facts which were believed by tbe plaintiffs and which induced them to make tbe purchase, and bad been guilty of fraud. We are convinced by tbe record tbat if we bad seen and beard tbe witnesses we would not have reached a different conclusion. Tbe defendants represented tbat tbe restaurant was a gold mine, taking in between $75 and $100 a day, tbat they bad paid $5,500 for it, bad paid $550 for a neon sign, tbat they bad a restaurant license, tbat the trouble with the municipal authorities bad been ironed out. Defendants bad misrepresented the cost of the business, its fair market value, the daily business done by them, there was no neon sign purchased or paid for, tbe defend ants did not have a valid restaurant license at the time of the sale, they had not complied with the municipal requirements. Plaintiffs were compelled to close the business shortly after taking possession, for lack of a license. In February, 1949, plaintiffs finally elected to close up the business after operating it until that time, pending hearing- of the case, in an effort to minimize their damages. Plaintiffs did not waive any rights by so doing.
Plaintiffs cross-appeal claiming that their “measure of damages” should be the difference between the real value of the property and what it would have been if the representations had been true. If that theory was tenable, plaintiffs have mistaken their remedy. Under their amended bill of complaint, the case has been tried and submitted on the theory of rescission, seeking injunctive relief, and not merely damages. In such case the amount of recovery is controlled by the amount plaintiffs have paid.
“In rescission plaintiff may recover back what he has paid, and in affirmance plaintiff may recover difference between yalue of stock as represented and its real value.
“On review, parties will be held to theory upon which cause was tried without objection in trial court.” Westman v. Brumm (syllabi), 248 Mich 387.
Plaintiffs overlook the fact that the Westman Case, supra, and also Poloms v. Peterson, 249 Mich 306, and Gloeser v. Moore, 284 Mich 106, also relied on by plaintiffs, were brought for damages claimed to have been suffered through fraud inducing the purchase, not based on rescission. While Hubert v. Joslin. 285 Mich 337, also relied on by plaintiffs, was a “bill * * * to obtain the amount of damages suffered by plaintiffs because of fraud,” the plaintiffs did not rescind, but sought to retain the prop erty (land contract) and receive a credit thereon for damages. The opinion states:
“Plaintiffs seek to retain the farm property they .acquired and recover damages in equity rather than suing at law.”
In the instant case, plaintiffs may recover the amount they paid. The total down payment made hy plaintiffs was $4,000. The trial court cancelled the agreement and allowed plaintiffs $1,600, apparently the difference between the cash down payment, $3,700, and the value of the business at the time of purchase, and in addition cancelled the promissory note. However, the court should have awarded them '$3,700, the full amount of their cash down payment, plus cancellation of $300 of the balance, included in the note. In rescission, the defrauded party may recover back what he has paid. Westman v. Brumm, supra, and other cases cited herein. In effect, the defendants consented to a rescission when they received hack the property which the plaintiffs “abandoned” by leaving it in the building- of which the defendant Chester was the lessee, whereupon the defendants removed the property and afterward sold it, at no apparent loss from the original value as claimed by them.
In Kundel v. Portz, supra, under circumstances •similar to the facts in the present case, the Court •said:
“In Young v. Rice, 234 Mich 697, 700, in which the question of mutual rescission of a contract of sale and purchase was involved, we said:
“ ‘This subject is exhaustively treated in 2 Black •on Rescission and Cancellation (2d ed), §§ 531, 532:
“ ‘ “When goods have been delivered to the buyer xtnder a contract of sale, and he returns them to the seller, and the latter accepts the redelivery, and resumes and retains possession of the property as Ms own, and does not notify the buyer that be intends to bold it subject to bis order or sell it for bis account, the transaction operates as a complete rescission of tbe contract of sale. And it appears, to be immaterial, in respect to tbe application of this rule, whether tbe purchaser assigns any reasons for returning tbe goods, or what bis sjDecified reasons may be, whether a. deficiency in quantity or quality, a general dissatisfaction with tbe property, bis inability to pay, or a mere wish to be released from his bargain. For his return of tbe goods is an offer of rescission, and tbe acceptance and retention of them by tbe seller is an acceptance of that offer, and thereupon a rescission is effected, not necessarily for legally sufficient cause, but by tbe mutual consent of tbe parties.” ’ ”
The decree should require defendants to pay $3,700 (not $1,600) and cancel tbe note to tbe extent of $300, thus making the full amount of $4,000, the down payment. Tbe decree of tbe trial court, as entered, is inconsistent in that (in paragraph 3) it cancels tbe executory contract of sale, thereby following tbe theory of rescission and return of tbe property, yet in the next paragraph awards tbe plaintiffs only $1,600, which is not the amount paid by plaintiffs, but merely tbe difference between tbe cash amount paid and tbe value of the property which tbe defendants received back. Furthermore, tbe decree cancels tbe full amount of tbe promissory note, $450, whereas only $300 of that amount was part of tbe down payment, and $150 was for rent which should not be cancelled or returned to tbe plaintiffs. However, tbe court properly approved tbe payment of rent during plaintiffs’ period of occupancy, and merely required the return to plaintiffs (by tbe clerk of tbe court) of $1,290, the amount impounded for monthly payments on tbe contract, to abide tbe out come as to whether the contract would be cancelled by the court.
A decree may be entered in this Court, as modified in consonance with this opinion, and remanding the same for enforcement thereof. No costs, each party having prevailed only in part.
Peid, C. J., and North, Dethmers, Bijtzel, Carr, Bushnell, and Sharpe, JJ., concurred.
See CL 1948, § 611.2 (Stat Ann § 27.652). — Reporter. | [
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Boyles, J.
This is a divorce case. Tbe only question raised is whether the alimony award and property division are inequitable and unfair.
Plaintiff was granted a divorce, custody of their minor child, $10 per week for support of said minor, and $10 per week alimony for her own support and maintenance. In the decree she was also awarded the automobile and household furniture and fixtures then in her possession, and in lieu of dower an undivided half interest as tenant in common in a certain apartment house in Detroit owned by the parties as tenants by the entireties. The defendant was awarded an automobile and household furniture and fixtures then in his possession, a vacant lot in Wayne county, an undivided half interest as tenant in common in the aforesaid apartment house, and all interest in all life insurance, endowment or annuity policies. The defendant appeals.
The parties were married in 1936 and separated in 1945. The defendant owned the vacant lot and the ■ apartment house at the time of the marriage. They Iboth value the vacant lot at about $2,000, appellant I values the apartment house at $7,000 or $8,000 while plaintiff considers it worth about $12,000. Both parcels are unencumbered. During the marriage the defendant put the title to the apartment house into a tenancy by the entireties with his wife but remained the sole owner of the vacant lot.
The gist of appellant’s claim that the court awarded too much property to the plaintiff is that he expended about $9,000 in work and equipment on a. farm owned by plaintiff’s mother. Plaintiff lived with her mother on the farm, the defendant lived in the apartment in Detroit and came out to the farm on week ends. He claims he contributed about $9,000' to the farm and she testified that he did not spend a lot of money on equipment and that he didn’t do any farm work at all. However that may be, it is his theory that the expenditures he made on plaintiff’s mother’s farm should be charged against plaintiff in considering the award of alimony or property to the plaintiff in the divorce decree. His theory is based on the fact that plaintiff’s mother died about a month before the divorce case was tried, leaving the plaintiff as her sole heir-at-law, wherefore she would become the sole owner of the farm. Plaintiff’s mother’s estate was then in course of administration in the probate court. For obvious reasons the circuit judge properly refused to include the value of plaintiff’s prospective intérest in the farm or the extent of appellant’s contributions while it was owned by plaintiff’s mother in decreeing a property settlement between the parties. Whether or not appellant would have a claim against the estate in probate court is beside the point. The time for creditors to file claims against the estate had not expired. Plaintiff did not yet have an absolute or final title, and the value of her interest in the farm was problematical. The value of the farm, the extent of appellant’s contributions, whether creditors of the estate might take any or all of it, and kindred matters then within the ju risdietion of the probate court, were matters not to he considered in the divorce case.
By the decree appellant retains his vacant lot, life insurance, automobile and household goods, and an undivided half interest as tenant in common in the apartment house. Plaintiff has her automobile and household goods and the undivided half interest in the apartment, house which she would otherwise have, under the statute, unless ownership were otherwise determined by the decree. CL 1948, § 552.102 (Stat Ann § 25.132). The award of alimony for the support, and maintenance of plaintiff and the minor son was not excessive and we find no reason to disturb the trial court’s division of the property. ■
Affirmed, with costs to appellee.
Reid, C. J., and North, Dethmers, Bijtzel, Carr, iBushnell, and Sharpe, JJ., concurred. | [
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] |
Reid, C. J.
Plaintiff filed in circuit court a petition for writ of certiorari to review a decision of tbe appeal board of defendant commission holding plaintiff is subject to a contribution rate of 3% of its payroll for the year 1949. The judgment of the circuit court affirmed the decision of the appeal board. Plaintiff appeals from the judgment of the circuit court and claims that its contribution for 1949 should be based on its experience index and not at the contribution rate of 3%.
On October 1,1946, Miller Protecto Products Company, a Michigan corporation, became a successor in business to a partnership having the same name. The records of these 2 employing units have been combined under the provisions of the Michigan unemployment compensation act, and both businesses are and have been treated as a single employing unit as required by the terms of that act.
This employing unit had its 20th week of 8 or more employees on the 41st week of 1945, which was the week ending October 12, 1945. It was held to be an employer under section 23 of the act for the full yeár of 1945, and on January 24, 1946, filed un employment compensation tax reports "and'paid the tax for the full year’ of' 194’5, as then required by the terms of the act.
This employing unit has been subject to the act at all times since the year 1945. It has annually received from the Michigan unemployment compensation commission a determination of the contribution rate for each such year, which determinations contained a finding of “insured payroll” wages paid and benefits charged under the act for each calendar quarter beginning January 1,1945. On April 8,1947 the employing unit received a determination from the Michigan unemployment compensation commission in which, among other things, the commission represented that the employing unit had an insured payroll 'for all 4 calendar quarters of 1945. This same determination was made on May 19,1947. The same determination was made on January 27, 1948. On January 11, 1949, the unemployment compensation commission made a determination that the employing unit’s insured payroll for the computation of the 1949 contribution rate covered only the last calendar quarter of 1945. The notices of contribution rates, above referred to, contained a statement that the rate was based on the fact that the employer had not been subject to the act for a period of time sufficient to entitle it. to an adjusted rate and that the employer’s rate was 3 % in accordance with the' applicable section of the statute. Such notices all contained a statement that they would, constitute a final determination unless appealed from within 15 days. An appeal was timely taken by plaintiff from the January 11, 1949 determination.
Decision of the instant case requires construction ■of section 19 of the Michigan unemployment compensation act, CL 1948, § 421.19 (Stat Ann 1950 Rev '§ 17.520), particularly that part of said section which ■ reads as follows:
“Each employer’s rate shall he 3 per centum of the wages paid by him with respect to employment unless and until there has been a period of not less than 36 consecutive calendar months ending with the ‘computation date’ throughout which an individual if unemployed and eligible, could have received benefits based on wages from such employer.” (Italics supplied.)
The computation date above referred to is September 30th in each year.
Plaintiff relies upon retroactive provisions of section 23 of the act, CL 1948, § 421.23 (Stat Arm 1950 Rev § 17.525), part of which is as follows:
“Except as otherwise provided in section 25, any employing unit which is or becomes an employer subject to this act within any calendar year shall be subject to this act during the Whole of such calendar year.”
The provisions of section 25 do not have any bearing on the matter in controversy in this case.
It is the claim of plaintiff that because of the retroactive provisions of section 23, above quoted, the employees of plaintiff after October 12,1945, become retroactively capable of receiving the benefits of the act if they could prove unemployment and eligibility during some period in 1945 even before September 30, the computation date. Plaintiff therefore claims that by the language of section 19 italicized by us for the purpose of this decision, such employees, if unemployed and eligible, could have received benefits.
It is clear that at no time before the computation date in question, September 30, 1945, could any employees of plaintiff hav.e received benefits based on their wages from plaintiff, because plaintiff was not .under the act until October 12, 1945.
Section 23 does not either expressly or by necessary implication change the computation date or the period prescribed for the experience index.
The appeal board and trial court correctly construed the portion of section 19 hereinbefore quoted.
Without merit is plaintiff’s claim that the commission is estopped to make the appealed from ruling because of the determination of the defendant commission in 1947 and 1948 of plaintiff’s insured payroll and benefits charged and the included finding that the insured had an insured payroll for each of the 4 calendar quarters of 1945.
The plaintiff first became subject to the act on October 12, 1945, and has been continuously subject since that time.
The determinations of 1947 and 1948 did not estop defendant commission from making the ruling plaintiff asks in this case to be reviewed because plaintiff did not thereby suffer a loss, and because plaintiff well knew the actual situation.
Plaintiff claims that the construction contended for by plaintiff (as compared with the ruling sought to be reviewed) is more in keeping with the expressed purpose of the legislature in enacting the Michigan- unemployment compensation act, as set forth in the title of the act and also in that part of subd (a) (3) of section 22 of the act, CL 1948, § 421.22 (Stat Ann 1950 Rev § 17.524), which is as follows:
“Provided further, that no rate of less than 3 per centum shall be permitted an employer succeeding to the experience record of another employer. pursuant to this section for any period subsequent to such succession and prior to the date as of which such experience records are combined, except in accordance with regulations prescribed by the commission, which regulations shall be consistent with Federal standards of additional credit allowance in section 1602 of the internal revenue code and consistent with the provisions of this act.”
Plaintiff further cites 26 TJSCA, § 1602 (a) (1) of the internal revenue code, as follows:
“(a) State standards. — A taxpayer shall be allowed an additional credit under section 1601 (b) with respect to any reduced rate of contributions permitted by a State law, only if the board finds that under such law—
“(1) No reduced rate of contributions to a pooled fund or to a partially pooled account is permitted to a person (or group of persons) having individuals in his (or their) employ except on the basis of his (or their) experience with respect to unemployment or other factors bearing a direct relation to unemployment risk during not less than the 3 consecutive years immediately preceding the computation date.” (Italics supplied.)
Plaintiff argues that an intent of the Michigan legislature favorable to plaintiff’s theory in the instant case, is to be found by comparison of the portions of our State statute, last above quoted, with the portion of the Federal act, above quoted, and argues that it was the intention of the State legislature to meet the requirements of the. Federal act as to 3 consecutive years experience with respect to unemployment as a basis for the experience index. Plaintiff further claims that there would not be a precise meeting of the requirements of the Federal act if the contested construction of the State act is to stand.
Our State statute, with the construction placed on it by defendant and by the trial court, still provides for experience during a full period of 36 consecutive calendar months ending with the computation date, and thus compares with the provision of the Federal act, of experience during the 3 consecu tive years immediately preceding the computation date. The State statute provides the 3% contributions up to the full standard required in the Federal act, hence plaintiff’s contention in this regard, is without merit.
The judgment appealed from is affirmed. Costs to defendant.
Boyles, North, Dethmers, Carr, Btjshnell, and Sharpe, JJ., concurred. Butzel, J., did not sit. | [
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H. Hood, J.
Following a bench trial, defendant was convicted of two counts of felonious assault, MCL 750.82; MSA 28.177, possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2), and carrying a concealed weapon (ccw), MCL 750.227; MSA 28.424. Defendant was sentenced to imprisonment for 2 to 4 years on the felonious assault convictions, 2 Vi to 5 years on the ccw conviction, and the mandatory 2-year term on the felony-firearm conviction. The court stated that the felonious assault and ccw sentences were to be served consecutively to the 2-year felony-firearm sentence. On the same day, defendant was sentenced in another case, case number 86-5632, in which he had been convicted of escape from prison. Defendant was sentenced in that case to one to two years imprisonment, to run consecutively to the other sentences. Defendant appeals as of right, challenging his sentences.
First, defendant claims that the court erred in making his ccw sentence run consecutively to his felony-firearm sentence. The prosecutor concedes that this was error and we agree. In the absence of statutory authority, sentences are to run concurrently, not consecutively. In re Carey, 372 Mich 378, 380; 126 NW2d 727 (1964). By statute, a sentence for felony-firearm is to be served consecutively to the sentence for the underlying felony. MCL 750.227b; MSA 28.424(2) states in pertinent part:
(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. . . .
(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.
However, there is no statute mandating that a sentence for ccw be served consecutively to a sentence for felony firearm. In fact, MCL 750.227b(1); MSA 28.424(2)(1) states specifically that ccw may not be the underlying felony for a felony-firearm conviction. Therefore, defendant’s ccw sentence should run concurrently with his felony-firearm sentence.
Next, defendant claims he is entitled to resentencing because the court did not sufficiently articulate its reasons for the sentences imposed, as required by People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983). The sentencing transcript reveals that the court did not state any reasons before imposing the sentences, but, after imposition, stated: "I hope it becomes clear to you that this society will not tolerate that kind of behavior, understand that?”
Although it is apparent that the court was stating as its reason the protection of society, we feel the court’s articulation was insufficient. According to Coles, the purposes of articulation are 1) to improve the justification for the sentence, 2) to develop a rational policy on which to base sentencing in the future, 3) to prevent rash and arbitrary decisions, 4) to promote thought by the sentencing court, and 5) to enable the defendant to hear the court’s reasons for imposition of the sentence before it is imposed so he can correct any inaccuracies upon which the court relies. Coles, supra, pp 549-550. These goals are difficult, if not impossible, to meet if the court waits until the end of the sentencing hearing and makes a remark such as the one at bar.
We have held that remand to the sentencing court for articulation of reasons is the appropriate remedy in such cases. See People v Williams, 142 Mich App 611, 614; 370 NW2d 7 (1985), lv den 424 Mich 903 (1986). However, we note that the sentences in the instant case exceeded the limits recommended in the guidelines. The Sentencing Information Report reveals that the recommended minimum sentence for defendant’s felonious assault convictions was zero to eighteen months, and the recommended minimum sentence for defendant’s ccw conviction was zero to twelve months. Besides not articulating reasons for the sentences, the court also did not state its reasons for exceeding the recommended limits in the guidelines, as required by People v Fleming, 428 Mich 408; 410 NW2d 266 (1987). Thus, under the facts of this case, we feel remand for resentencing is appropriate. Upon remand, the court is instructed to state its reasons for the sentences imposed and, if the court imposes sentences exceeding the recommendations of the guidelines, its reasons for exceeding those recommendations.
Remanded for resentencing in accordance with this opinion. | [
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Weaver, J.
Plaintiff appeals as of right from a circuit court order which granted summary disposition in favor of defendant pursuant to MCR 2.116(C)(8)._
i
This suit arises from injuries to twelve-year-old Robert J. (Bobby) Madley, Jr., which occurred when he was struck by an automobile on January 25, 1982, at approximately 4:30 p.m. while crossing a busy thoroughfare in Detroit on his bicycle. At the time of the accident Bobby was employed as one of defendant’s independent-contractor news-carriers and had just left defendant’s pickup station after obtaining his newspapers.
Among the allegations in his complaint against the defendant newspaper was the assertion that defendant breached a duty to provide Bobby and its other newscarriers with "a safe place to work including, but not limited to, the areas immediately adjacent to the work area which [was] used by the newsboys in the discharge of their duties,” and that defendant failed to instruct, warn, and take precautions to prevent or protect them while crossing the roadway after leaving the pickup station on their bicycles.
On the day set for trial, defendant moved for summary disposition pursuant to MCR 2.116(C)(8) (failure to state a claim upon which relief can be granted), alleging that it owed no duty because Bobby was an independent contractor. The motion was granted. Plaintiff appeals as of right.
On appeal, plaintiff argues that the trial court erred by granting summary disposition because defendant (1) failed in its alleged duty, arising from a "special relationship,” to warn and protect Bobby from exposure to the dangers immediately outside defendant’s premises within "seeing distance,” and (2) breached a duty to distribute newspapers in a reasonably safe manner at a reason ably safe location. We disagree with these contentions.
ii
In order to overcome a motion for summary disposition, plaintiff needed to show on the basis of the pleadings alone, and reasonable inferences or conclusions therefrom, that defendant owed a duty to Bobby, because without a duty no liability for negligent conduct would arise. Harrison Twp v Calisi, 121 Mich App 777, 781-782; 329 NW2d 488 (1982); Duvall v Goldin, 139 Mich App 342, 347; 362 NW2d 275 (1984), lv den 422 Mich 976 (1985). The question of duty is one of law for the court, which must assess competing policy considerations to determine whether the relationship between the actor and the injured person will occasion the actor’s legal obligation to the injured person. Locklear v Stinson, 161 Mich App 713, 715-716; 411 NW2d 834 (1987); Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977), supplemental order 402 Mich 958 (1978). Jackson v New Center Community Mental Health Services, 158 Mich App 25, 36; 404 NW2d 688 (1987).
Plaintiffs argument that there existed between defendant and Bobby a special relationship triggering liability for passive negligence or "nonfeasance” is unpersuasive. This situation is factually distinguishable from the situations found in cases upon which plaintiff relies. There existed between defendant and Bobby no characteristics such as confidence, treatment and control as were present in cases describing a physician-patient or psychiatrist-patient relationship. See Shepard v Redford Community Hospital, 151 Mich App 242, 245-246; 390 NW2d 239 (1986); Paul v Plymouth General Hospital, 160 Mich App 537, 542; 408 NW2d 492 (1987); Hinkelman v Borgess Medical Center, 157 Mich App 314, 322, 324; 403 NW2d 547 (1987), lv den 428 Mich 905 (1987). Nor did there exist between defendant and Bobby the characteristics of a victim-rescuer relationship; it was not alleged that Bobby was in peril until after the accident and it was not alleged that defendant newspaper was negligent by failing to render aid. See Petersen v Heflin, 163 Mich App 402, 405-406; 413 NW2d 810 (1987). Other characteristics found in the special relationships described in additional cases are also lacking here. See Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 (1975) (landlord-tenant relationship as to repair and safety of a building’s common areas); Farwell v Keaton, 396 Mich 281; 240 NW2d 217 (1976), reh den 397 Mich 958 (1976) (social companions engaged in a common undertaking).
We also find unpersuasive plaintiffs suggestion that, if a special relationship did not already exist between defendant newspaper and its newscarriers, then policy considerations should justify our judicial creation of such a relationship. Special circumstances, which might conceivably give rise to a duty to warn, instruct, or take other precautions, do not exist in this case. It is not plausible to believe that creation of a special relationship is necessary to prevent "potential exploitation in the work force,” since the newscarriers derive economic benefit from the independent contractor relationship. Nor is it plausible to believe that creation of a special relationship is necessary to enable the newscarriers adequately and safely to perform their jobs. Most children at the age of twelve can appreciate the dangers of crossing a busy street, and even plaintiff agrees that young newscarriers are able to perform the job of delivering newspapers.
Furthermore, no allegation was made that defendant failed to exercise due care while Bobby, as an independent contractor, was a business invitee at the pickup station on defendant’s premises. See Beals v Walker, 98 Mich App 214, 225; 296 NW2d 828 (1980), rev’d on other grounds 416 Mich 469 (1982); Locklear, supra at 716. This Court has recognized no affirmative duty to prevent accidents which are not the fault of the owner or possessor of the premises or the result of any condition he created. Swartz v Huffmaster Alarms Systems, Inc, 145 Mich App 431, 434-435; 377 NW2d 393 (1985). The accident in this case occurred outside defendant’s premises. Defendant did not create any hazard which did not already exist, and did not increase existing hazards by either taking or not taking certain steps. See Rodriguez v Detroit Sportsmen’s Congress, 159 Mich App 265, 272-273; 406 NW2d 207 (1987), lv den 428 Mich 905 (1987).
iii
We reject plaintiffs argument that defendant newspaper engaged in active negligence or "misfeasance” by unreasonably exposing its newscarriers to a dangerous situation when requiring them to come to defendant’s particular business location. The trial court properly refused to consider extrinsic facts and facts not alleged in plaintiffs complaint, since motions brought under MCR 2.116(C)(8) are tested by the pleadings alone. Harrison, supra. We support the trial court’s finding that Swartz v H M Eberly, Herr & Co, Inc, 212 F Supp 32 (ED Pa, 1962), is not persuasive for the proposition that a newspaper company should be responsible for injuries to its independent-contrac tor newscarriers once they have left their pickup stations.
We do not believe that the law in Michigan may be construed to require of an independent contractor’s employer any duty to the contractor once he has left the premises where the employment situation exists. To create, as did the Eberly court, the existence of such a duty on the public streets or sidewalks along the route which the carrier is traveling would, in our view, negate the basis of the law of premises liability in Michigan, which establishes a premises owner’s duty to business invitees only when the invitee is on property within the control of the owner of the premises. See Muscat v Khalil, 150 Mich App 114, 126; 388 NW2d 267 (1986), lv den 425 Mich 864 (1986); Dumka v Quaderer, 151 Mich App 68, 72-75; 390 NW2d 200 (1986), lv den 426 Mich 861 (1986); Huffmaster, supra; Rodriguez, supra. The creation of such a duty would erroneously extend liability beyond the legal parameters of on-site safety. See Clark v Dalman, 379 Mich 251, 262; 150 NW2d 755 (1967).
For the foregoing reasons, the trial court did not err by finding that defendant owed no duty regarding Bobby’s actions once he had left defendant’s business premises. Taking all factual allegations of the complaint as true, along with inferences or conclusions fairly drawn therefrom, plaintiffs claim was so clearly unenforceable as a matter of law that no factual development could possibly have justified a right to recover, and summary disposition was properly granted pursuant to MCR 2.116(C)(8). Harrison, supra.
Affirmed.
Plaintiffs allegations against the codefendants driver and owner of the vehicle resulted in settlement. | [
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Per Curiam.
Defendants Michael David Johnson and Robert A. Johnson, brothers, were jointly charged with breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305. Following a joint jury trial, they were convicted of the lesser included offense of entering without breaking with intent to commit larceny, MCL 750.111; MSA 28.306. Following the verdicts, Michael pled guilty to being a third-offense habitual offender, and Robert pled guilty to being a fourth-offense habitual offender. The court sentenced Michael to eighty to one hundred twenty months imprisonment, and Robert to seventy-eight to one hundred twenty months. Both were given credit for time served. Defendants now appeal as of right, and their appeals have been consolidated.
The victim, Marvin Hayes, testified that he returned home from a weekend trip to Columbus, Ohio, at approximately 11:00 p.m. on August 19, 1985. As he pulled up in his driveway, he saw Michael’s car parked five feet from his back door. Michael came out the back door, and, upon seeing Hayes, stated, "Did you see the robbers? Somebody’s trying to rip you off.” Hayes saw his stereo, speakers, equalizer, and his wife’s jewelry box stacked by the kitchen door. Moments later, defendant Robert came from the side of the house with a flashlight. Hayes testified that he had left his house locked, but a hard shove or kick could unlock the door, and that Michael knew this.
Michael testified that he and Robert went to Hayes’ house to pick up Michael’s paycheck, which was payment for some painting Michael had done for Hayes. Hayes normally paid Michael on Friday, but on this particular weekend Hayes had told Michael he would be out of town until Sunday night or Monday. Michael testified that, upon arriving at Hayes’ house, they saw three men running in the yard. He drove his car into the backyard to investigate, and Robert unsuccessfully chased the men. At this point, Hayes arrived home. Robert’s testimony corroborated that of Michael.
Officer Richard Aro testified that no fingerprints were found on the items, as most of the items were wood, and fingerprints do not adhere to wooden objects.
On appeal, both defendants first claim that the trial court erred in denying their motion for directed verdict. We disagree. Taking the evidence in a light most favorable to the prosecutor, we find that a rational trier of fact could find that defendants broke into and entered Hayes’ home with intent to commit larceny. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980).
Next, defendant Robert claims that the court erred in allowing his impeachment through the use of evidence of four prior felony convictions, a 1977 conviction for breaking and entering an occupied dwelling with intent to commit larceny, a 1977 conviction for attempted breaking and entering an unoccupied dwelling with intent to commit larceny, a 1978 conviction for breaking and entering an unoccupied dwelling with intent to commit larceny, and a 1984 conviction for attempted larceny over $100. Before trial, Robert moved to suppress the convictions, but the court denied the motion.
MRE 609(a) states:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.
The Michigan Supreme Court recently decided People v Allen, 429 Mich 558; 420 NW2d 499 (1988), in which the Court amended MRE 609(a). The amended version of MRE 609(a) provides that all crimes containing an element of dishonesty or false statement are admissible to impeach the credibility of a witness, but that crimes containing an element of theft are admissible only if the crimes are punishable by imprisonment in excess of one year and, if the witness is the defendant, the probative value of the evidence outweighs its prejudicial effect. Allen, supra, p 614. The Court then set forth the proper factors to be considered by trial courts when balancing the probativeness of prior felony theft convictions against the prejudice. Although the Court stated that the amendment to MRE 609(a) shall apply only after March 1, 1988, the Court held that the clarified balancing test for probativeness and prejudice is to apply to cases pending on appeal in which the issue of impeachment by prior convictions under MRE 609(a) has been raised and preserved. Allen, supra, p 609. Since this is such a case, the clarified balancing test applies to the instant case.
The clarified balancing test provides that, in determining probativeness, only an objective analysis of the degree to which the crime is indicative of veracity and the age of the conviction should be considered. Allen, supra, p 606. For purposes of the prejudice factor, only the similarity to the charged offense and the importance of defendant’s testimony to the decisional process should be considered. Id.
In the instant case, all the prior convictions were for theft offenses. Theft offenses are not directly probative of veracity, but only moderately so. Allen, supra, p 610. Two of the convictions were eight years old at the time of trial; one was seven years old, and one was a year old. Thus, all but one are not of recent vintage. Therefore, the probativeness side of the equation is relatively weak. On the prejudice side, we note that all the convictions were for similar crimes and that defendant’s testimony was very important to his defense, as without his testimony the jury would have heard only Hayes’ version of the events. On balance, we feel the prejudicial effect of the evidence of the prior felony convictions outweighed its probativeness and that the court thus erred in denying defendant’s motion to suppress. We note, in addition, that defendant Robert was impeached by the testimony of Officer Aro, who, on rebuttal, testified to prior inconsistent statements made by Robert. Thus, the necessity of using defendant’s felony convictions for impeachment is lessened, as he was impeached in another manner.
According to Allen, improper admission of prior convictions for impeachment can be harmless error. Allen, supra, p 612. However, we do not feel it was harmless in the instant case. The evidence against defendants was not overwhelming. There were no eyewitnesses to the crime, and no fingerprints. Hayes’ testimony, that he arrived home and discovered defendants in his backyard and some of his possessions stacked by his back door, was the only evidence against defendants. Defendants’ story, that they went to Hayes’ home to pick up a check and discovered three men at Hayes’ home, was not incredible. The error was further compounded by the prosecutor’s referral to Robert as an "experienced b & e man” in his closing argument. Thus, we find the error not to be harmless, and reverse Robert’s conviction and remand for a new trial.
Since we reverse Robert’s conviction on this issue, we need only briefly address Robert’s remaining issue, which may resurface upon retrial. We disagree with Robert’s claim that the court erred in admitting Officer Aro’s hearsay testimony regarding Michael’s statement to him that Robert had helped him replace the stereo equipment in Hayes’ house. This testimony was admitted to rebut Robert’s testimony that he had never en tered Hayes’ home. Robert claims this statement was inadmissible under Bruton v United States, 391 US 123, 126; 88 S Ct 1620; 20 L Ed 2d 476 (1968). In Bruton, the confession of a codefendant, Evans, who did not testify at trial, was read into evidence at the trial, and the confession implicated the other defendant, Bruton. The jury convicted both Evans and Bruton. The Court reversed Bruton’s conviction, finding that Bruton was denied his right to cross examine Evans on the statement. Bruton, supra, 391 US 124-125. The Bruton case involved a conflict between Evans’ Fifth Amendment right to refrain from testifying and Bruton’s Sixth Amendment rights under the Confrontation Clause to cross-examine his accuser. Obviously, the Bruton principle is inapplicable where the codefendant elects to take the stand and be subject to cross-examination. In the instant case, Michael was available for cross-examination and, in fact, did deny telling Aro (that Robert had helped him replace the stereo equipment before Hayes’ arrival. There is thus no Bruton error, and no basis for reversal.
Finally, we reject Michael’s claim that the court erred in not rereading the entire jury instructions when the jury asked the court to reread instructions on the burden of proof and the elements of the crime. Michael’s counsel expressly approved the court’s response to the jury’s questions, and the instruction itself was accurate. People v Darwall, 82 Mich App 652, 663; 267 NW2d 472 (1978), lv den sub nom People v Farmer, 409 Mich 918 (1980).
Michael’s conviction is affirmed. Robert’s conviction is reversed and remanded for a new trial in accordance with this opinion. | [
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Per Curiam.
Defendant Calvin George White was charged with possession with intent to deliver marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). Following preliminary examination, he was bound over to Recorder’s Court of Detroit for trial on the charged offense. In Recorder’s Court defendant filed a motion to suppress the evidence which had been seized pursuant to a search warrant and which was the basis for the marijuana charge. The court granted the motion to suppress and dismissed the case, finding that issuance of the warrant was not supported by probable cause. The prosecutor appeals. Defendant has filed a cross-appeal, challenging the court’s rejection of his claim that the magistrate lacked the authority to issue the warrant. We reverse the order of dismissal and the order granting the motion to suppress.
Probable cause for issuance of a search warrant exists when the facts and circumstances would allow a person of reasonable prudence to believe that the evidence of a crime or contraband sought is in the stated place. People v Sundling, 153 Mich App 277, 286; 395 NW2d 308 (1986). A magistrate’s determination of probable cause is given great deference and is upheld absent an abuse of discretion. Id. A magistrate’s finding of probable cause is based upon all the facts related within the affidavit presented to the magistrate. MCL 780.653; MSA 28.1259(3).
In this case, we are persuaded of no abuse of the magistrate’s discretion. The search warrant was issued on March 27, 1986, and authorized the police to search the premises at 19134 Braile in Detroit. The supporting affidavit of a Detroit police officer assigned to the investigation of controlled substances violations was based in part on the observations of a confidential informant, whose credibility and reliability are not challenged. According to the affidavit, the informant’s attempt to make a controlled buy of marijuana from defendant at the Braile address on March 26, 1986, was unsuccessful. But the informant spoke with defendant at that address on that day and saw several plastic baggies of suspected marijuana in defendant’s hand. The informant also saw three persons sitting in the living room smoking marijuana. The affiant further stated that during a subsequent thirty-minute police surveillance of the house on March 26, seventeen people arrived. Each of those people, ten of whom arrived by car and seven by foot, entered the house but stayed for only about thirty seconds. The affiant stated that such activity is common in narcotics trafficking, and that, from April 26, 1985, to March 24, 1986, the narcotics section had received four reports of drugs being sold at 19134 Braile.
We find that, on the basis of the affidavit submitted in this case, a reasonably prudent person could have concluded that evidence of a crime or contraband was present at 19134 Braile on March 27, 1986. While the passage of time is a valid consideration in deciding whether probable cause exists at the time a warrant is issued, the delay in this case was not substantial and, under these facts, did not render the information in the affidavit fatally stale. Cf. People v David, 119 Mich App 289; 326 NW2d 485 (1982), lv den 417 Mich 858 (1983), where this Court observed that the credibility of the informant had not been demonstrated and, in addition, concluded that the three-day delay following a controlled buy of marijuana had rendered the affidavit stale. In contrast to the facts in David, when the informant left the premises in this case, he saw defendant and others in possession of marijuana. There was also police observation of activity at the house which was common in narcotics trafficking, and the delay in securing the search warrant was significantly shorter than that in David. Giving due deference to the magistrate, we find that the Recorder’s Court erred in holding that the magistrate’s decision to issue the search warrant was erroneous.
On cross-appeal defendant argues that a magistrate has no authority to issue search warrants without the written authorization of a district court judge, that there was no such authorization in existence at the time the instant search war rant was issued, and that the search warrant was therefore invalid. We disagree.
A magistrate’s power to issue an arrest warrant in a particular case is, with certain exceptions, expressly dependent on the written authorization of the prosecuting attorney or municipal attorney. MCL 600.8511(b); MSA 27A.8511(b). In contrast, magistrates have the general power "to issue search warrants, when authorized to do so by a district court judge.” MCL 600.8511(d); MSA 27A.8511(d). By court rule, magistrates may exercise only those duties expressly authorized by the chief judge of the district or division. MCR 4.401(B).
In People v Brooks, 75 Mich App 448; 254 NW2d 926 (1977), this Court rejected the defendant’s claim that a search warrant issued by a municipal judge (i.e., magistrate) was invalid because it was issued without the filing of an authorization order signed by the prosecutor. Referring to MCL 600.8511(b) and (d); MSA 27A.8511(b) and (d), the Court stated:
The Legislature obviously varied these neighboring sections intentionally so as to require a written authorization order from the prosecutor only for arrest warrants. There is no authority in the statutes or common law of Michigan for extending this requirement to search warrants. [75 Mich App 450.]
We are persuaded that this reasoning applies also to the claim made by defendant in this case. There is no requirement of written authorization in MCL 600.8511(d); MSA 27A.8511(d) or in MCR 4.401(B), and, contrary to defendant’s claim on appeal, there is no express requirement that the authorization contemplated by the statute and court rule be granted by administrative order under MCR 8.112. We are persuaded that, had the Legislature or Supreme Court intended to require written authorization, they would have done so.
Affirmed in part and reversed in part.
At the hearing on the motion to suppress, defense counsel stated that he had gone to the office of the administrator of the 36th District Court and had been told that there is nothing in writing which authorizes the court’s magistrates to issue search warrants. Counsel also stated that he had spoken with one of the magistrates, who told him "that although they believe they have oral authorization, that there’s nothing in writing to that person’s knowledge either.” | [
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] |
R. R. Lamb, J.
The Michigan Department of Transportation appeals by leave granted from a circuit court order denying its motion for summary disposition brought pursuant to MCR 2.116(C)(4), lack of subject matter jurisdiction. We reverse.
On March 22, 1985, plaintiff brought an inverse condemnation action against the department in the Wayne Circuit Court under the Uniform Condemnation Procedures Act (ucpa), MCL 213.51 et seq.; MSA 8.265(1) et seq. In his complaint, plaintiff alleged that he owned a gasoline service station located on Ford Road in Westland. He further alleged that his western driveway, which provides access to the sole pump island of his station, was relocated as part of a road-widening project undertaken by defendant on Ford Road. According to plaintiff, defendant’s relocation of his driveway "substantially and materially” impaired his right of ingress and egress so as to amount to a taking of his right of access. Because defendant refused to offer just compensation for this taking, plaintiff alleged that defendant’s actions and omissions resulted in a de facto taking of his property without just compensation.
Subsequent to the filing of plaintiff’s complaint, defendant brought a motion for summary disposition, seeking the dismissal of plaintiff’s complaint on the ground that the circuit court lacked subject matter jurisdiction because the Court of Claims had exclusive jurisdiction over plaintiff’s claim. The trial court denied defendant’s motion.
The sole issue before this Court for resolution is whether a circuit court has jurisdiction to adjudicate an inverse condemnation claim brought pursuant to the ucpa.
The Court of Claims is a court of legislative creation. Its statutory powers are explicit and limited. Feliciano v Dep’t of Natural Resources, 97 Mich App 101, 109; 293 NW2d 732 (1980). The Court of Claims has exclusive jurisdiction to entertain claims ex delicto and ex contractu against the state and its departments. MCL 600.6419(1); MSA 27A.6419(1). However, this legislative grant of exclusive jurisdiction does not divest the circuit court of jurisdiction over actions against state departments based on statutes which expressly confer jurisdiction thereof upon the circuit court. MCL 600.6419(4); MSA 27A.6419(4).
The Court of Claims is the proper forum in which to seek redress where a plaintiff alleges an already accomplished inverse condemnation by the State of Michigan. Hill v State Highway Comm, 382 Mich 398; 170 NW2d 18 (1969); Biff’s Grills, Inc v State Highway Comm, 75 Mich App 154, 158; 254 NW2d 824 (1977), lv den 401 Mich 827 (1977). The Michigan Constitution provides that private property shall not be taken for public use without just compensation. Const 1963, art 10, § 2. When private property is either taken or damaged for public purposes, this constitutional provision serves as a guarantee to the landowner that he shall have just compensation for the taking or damage. The sovereign, then, takes or injures the property with the knowledge of this guarantee and must be held to an implied agreement to abide by its terms. It is, in a sense, a constitutional contract made for the benefit of private property owners. It imposes upon the state an implied liability ex contractu for such compensation. See Thom v State Highway Comm’r, 376 Mich 608, 628-629, 634-638; 138 NW2d 322 (1965) (Souris, J., Black, J.); Hunter v Mobile, 244 Ala 318; 13 So 2d 656 (1943); State Highway Comm v Bullard, 208 Kan 558; 493 P2d 196 (1972); Public Service Comm v Higfield Water Co, 293 Md 1; 441 A2d 1031 (Md App, 1982).
We, therefore, hold that an inverse condemna tion action is a claim ex contractu. Moreover, because our research has failed to reveal any statute expressly conferring upon the circuit court jurisdiction to adjudicate claims of inverse condemnation, we further hold that the Court of Claims is the exclusive forum to adjudicate such claims.
Plaintiff argues that in enacting the ucpa the Legislature expressly conferred jurisdiction upon the circuit court to hear claims of inverse condemnation initiated by aggrieved property owners. Plaintiff is mistaken. The ucpa has no application to inverse condemnation actions initiated by aggrieved property owners. Instead, the ucpa only governs actions initiated by an agency to acquire property on the filing of a proper complaint and after the agency has made a good-faith written offer to purchase the property. MCL 213.55; MSA 8.265(5). The agency must be authorized by law to condemn property. MCL 213.51(g) and (i); MSA 8.265(1)(g) and (i).
Finally, plaintiff argues that the right to just compensation is constitutional and not contractual or tortious in nature and, therefore, because the claim is grounded in the constitution it should be adjudicated in a court created by the constitution and not one created by the Legislature. We find plaintiffs argument to be without merit. Thom, supra; Hunter, supra.
Accordingly, the decision of the circuit court is reversed. Its order is vacated. | [
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Per Curiam.
Petitioner appeals as of right from a Michigan Tax Tribunal decision affirming a use tax assessment issued by the Department of Treasury for January 1, 1975, through June 30, 1978.
The underlying facts are not in dispute. Petitioner operates a mechanical and electrical contracting business in Michigan. Acting as a subcontractor on construction projects, petitioner bids for contracts involving the installation of fire, security, and energy management systems. If a bid is successful, petitioner orders the necessary project equipment from its manufacturing plant in Illinois. The manufacturing plant acquires raw materials from suppliers throughout the United States, then fabricates those materials into finished products. Finished products are shipped to petitioner’s Michigan office for installation in accordance with contract specifications. The Illinois plant and Michigan office are deemed part of the same division of petitioner’s corporate organizational structure.
In 1979, respondent issued a Notice of Intent to Assess for use tax on the value of the finished products shipped to Michigan in the amount of $19,697 for January 1, 1975, through June 30, 1978. Petitioner protested $16,715 of this amount to the State Board of Tax Appeals (sbta), the agency which then had jurisdiction over this case, claiming that the difference between the material cost and manufacturing cost of the finished products was not taxable.
In 1980, respondent issued a final assessment for the use tax of $19,697, plus accrued interest. Petitioner responded by filing a petition with the sbta for a redetermination of the final assessment and a refund request for claimed use tax overpayments. An evidentiary hearing was held. In 1982, the case was transferred to the Tax Tribunal for decision. On October 29, 1985, the Tax Tribunal affirmed the final assessment. In doing so, the tribunal determined that the use tax is lawfully imposed on the value of the finished products brought into Michigan, including all manufacturing, fabricating, and processing costs.
This Court’s review of Tax Tribunal decisions is limited to determining whether they are authorized by law and whether the factual findings are supported by competent, material, and substantial evidence. MCI Telecommunications Corp v Dep’t of Treasury, 136 Mich App 28; 355 NW2d 627 (1984), lv den 422 Mich 883 (1985), and Const 1963, art 6, § 28. The sole issue raised for our consideration is whether the Tax Tribunal correctly determined that the Use Tax Act, MCL 205.91 et seq.; MSA 7.555(1) et seq., authorized taxing the value of the finished products.
The use tax is a complement to the sales tax and is designed to cover those transactions not covered by the General Sales Tax Act, MCL 205.51 et seq.; MSA 7.521 et seq. Master Craft Engineering, Inc v Dep’t of Treasury, 141 Mich App 56, 68; 366 NW2d 235 (1985). While the General Sales Tax Act levies a tax on the person making a "sale at retail,” as the conduit or means of collecting a sales tax from customers, the use tax provides for a more direct collection of the tax from the consumer where the purchase is made out of state. National Bank of Detroit v Dep’t of Revenue, 334 Mich 132, 141; 54 NW2d 278 (1952). The use tax is a tax for the privilege of using, storing and consuming tangible property brought from out of the state after it has come to rest. The tax rate is four percent of the "price” of the property. MCL 205.93; MSA 7.555(3).
The crucial issue in this case is the "price” of the finished products transferred from petitioner’s Illinois plant to Michigan for use or consumption. It is not disputed that this transfer is subject to the use tax.
For the taxable period in question, "price” was defined as follows:
"Price” means the aggregate value in money of any thing, or things, paid or delivered, or promised to be paid or delivered by a consumer to a seller in the consummation and complete performance of the transaction by which tangible personal property or services shall have been purchased or rented for storage, use or other consumption in this state, without any deduction therefrom on account of the cost of the property sold, cost of materials used, labor or service cost, interest or discount paid, or any other expense whatsoever. [1969 PA 214, MCL 205.92(f); MSA 7.556(2X0.]
In order to clarify the tax treatment of consumers who also manufacture the goods consumed, respondent promulgated the following administrative rule in 1971:
(6) Where a manufacturer affixes his product to real estate for others, he qualifies as a contractor and shall remit use tax on the inventory value of the property at the time the property is converted to the contract which value shall include all costs of manufacturing, fabricating, and processing. [1979 AC, R 205.71.]
Respondent argues that deference should be given to its interpretation of the definition of "price.” Petitioner responds that the rule is invalid as it exceeds the scope of the Legislature’s definition. We agree with respondent and affirm the Tax Tribunal.
An administrative interpretation is entitled to considerable weight unless the interpretation conflicts with the plain meaning of the statute. Cf. ACCO Industries, Inc v Dep’t of Treasury, 134 Mich App 316, 322; 350 NW2d 874 (1984), lv den 421 Mich 857 (1985). We find no conflict in this case. Petitioner was acting in a dual capacity of manufacturer and consumer. Although there was no "sale” in the traditional sense, fire, safety and energy management systems manufactured by petitioner were also consumed by petitioner in this state. In Republic Steel Corp v McCastlain, 240 Ark 979; 403 SW2d 90 (1966), the Supreme Court of Arkansas was presented with a similar situation. There, the plaintiff manufactured steel bars in Illinois and then transferred the bars to Arkansas for use in a construction project. Noting that the state’s use tax was based on the privilege of storing, using or consuming tangible personal property, the court found that the transaction was subject to the tax as the plaintiff exercised the privilege of using the steel bars in the state. Id., p 92. We believe that it was likewise the intention of our Legislature to impose a tax on all tangible personal property consumed in this state. As the property consumed in this case was a finished product and not raw materials, respondent’s interpretation of the definition of "price” fulfilled the Legislature’s intent and, therefore, was authorized by the Legislature.
Further, we note that the Legislature amended the definition of price in 1982 to include the following language:
The price of tangible personal property for affixation to real estate to a manufacturer, fabricator, or assembler of tangible personal property who qualifies as a construction contractor who affixes the tangible personal property to realty for others shall be equal to the amount of consideration or purchase price which any other person would have to pay if the other person acquired the tangible personal property from the manufacturer, fabricator, or assembler for affixation to real estate. [1982 PA 479, eff March 30, 1983.]
We interpret this amendment as merely clarifying the Legislature’s intent to impose a use tax on transactions such as those at issue in this case. ACCO Industries, Inc, supra.
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Per Curiam.
A Detroit Recorder’s Court jury convicted defendant of manslaughter, MCL 750.321; MSA 28.553, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant received consecutive sentences of two years’ imprisonment on the felony-firearm conviction and five to fifteen years’ imprisonment on the manslaughter conviction. Defendant appeals as of right.
The sole issue on appeal is whether the trial court correctly instructed the jury as to the definition of reasonable doubt. We believe it did.
Defendant’s conviction arose out of the stabbing death of "Lucky” Barton. John Holloway, the prosecution’s chief witness, testified that on the morning of November 22, 1984, he was present in an after-hours bar in Detroit. Defendant and Barton also were present. According to Holloway, defendant and Barton began to argue. During this argument, defendant pulled a pistol on Barton. Holloway also observed a knife lying on a nearby pool table.
As the argument intensified, Holloway secreted himself in the bar’s restroom. While in hiding, he heard defendant order Barton to drop to his knees and apologize. He then heard two gunshots. Unable to escape by way of a restroom window, Holloway reentered the main bar where he observed defendant and Barton fighting. Barton was bleeding from both legs. Holloway fled. As he exited from the bar, he observed Barton holding a chair as a shield and defendant holding a knife. The two were moving towards the bar’s kitchen.
While Holloway was next door summoning an ambulance, he observed defendant leave the bar with the knife. He returned to the bar moments later and found Barton lying in a pool of blood on the kitchen floor. He then left the bar a second time and again summoned an ambulance. On his return, he discovered Barton lying outside, in the rear of the bar, bleeding profusely from multiple wounds.
An autopsy revealed that Barton died as a result of a stab wound to the right chest which penetrated the liver, causing massive blood loss. It further revealed that Barton had suffered gunshot wounds in each leg above the knee and multiple stab wounds about the body. Defendant admitted shooting Barton, but denied any involvement in the stabbings.
On appeal, defendant argues that the trial court’s instruction to the jury defining reasonable doubt was fatally flawed because it failed to incorporate the "moral certainty” language of CJI 3:1:04 and CJI 3:1:0s. The failure to incorporate such language in an instruction defining reason able doubt does not, by itself, constitute an error warranting reversal. To pass scrutiny, the instruction, when read in its entirety, must leave no doubt in the mind of the reviewing court that the jury understood the burden which was placed upon the prosecution and what constituted a reasonable doubt. People v Powers, 203 Mich 40, 45; 168 NW 938 (1918).
An instruction defining reasonable doubt may not shift the burden of proof by requiring the jurors to have a reason to doubt the defendant’s guilt. Rather, the instruction must convey to the jurors that a reasonable doubt is an honest doubt based upon reason. People v Nickson, 120 Mich App 681, 688; 327 NW2d 333 (1982). It is a state of mind that would cause the jurors to hesitate when acting in the graver and more important affairs of life. People v Bradford, 10 Mich App 696, 708; 160 NW2d 373 (1968), lv den 381 Mich 778 (1968), cert den 394 US 1022; 89 S Ct 1638; 23 L Ed 2d 48 (1969); Nickson, supra.
In the instant case, the trial court characterized reasonable doubt as a doubt that is founded in reason, that arises from the evidence or from a lack thereof and that is not based on a "funny feeling” in the pit of the stomach or on sympathy, prejudice or bias. This instruction correctly conveyed to the jury that reasonable doubt is an honest doubt based upon reason. Moreover, it did not have the effect of shifting the burden of proof by requiring the jurors to have a reason to doubt defendant’s guilt. Rather, it required the jurors to have a reason to doubt defendant’s innocence. As the trial court stated: "What I am telling you is that the proofs presented by the people must eliminate any doubt based on reason, any doubt which would have a rational explanation.”
When the instruction is read in its entirety, we do not doubt that the jury understood the prosecution’s burden and what constituted a reasonable doubt. Accordingly, we affirm.
CJI 3:1:04 provides:
A reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence in this case or growing out of any reasonable or legitimate inferences drawn from the evidence or lack of evidence. It is not merely an imaginary doubt or a flimsy, fanciful doubt or a doubt based upon the mere possibility of the innocence of the defendant or a doubt based upon sympathy, but rather it is a fair, honest doubt based upon reason and common sense. It is a state of mind which would cause you to hesitate in making an important decision in your own personal life. By stating that the prosecution must prove guilt beyond a reasonable doubt, I mean there must be such evidence that causes you to have a firm conviction to a moral certainty of the truth of the charge here made against this defendant.
CJI 3:1:05 provides:
A reasonable doubt is a fair doubt growing out of the testimony, the lack of testimony or the unsatisfactory nature of the testimony in the case. It is not a mere imaginary or possible doubt, but a fair doubt based on reason and common sense. It is such a doubt as to leave your minds, after a careful examination of all the evidence in the case, in the condition that you cannot say you have an abiding conviction to a moral certainty of the truth of the charge here made against the defendant. | [
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] |
Doctoroff, J.
Plaintiff appeals as of right from the trial court’s order that denied his motions for summary disposition on Count i of his complaint, MCR 2.116(C)(9) and (10), granted defendants’ counter-motion for summary disposition on Count i, and granted his motion for summary disposition on Count n. We reverse.
This action arises out of plaintiff’s proposed plat development of a sixteen-acre parcel of land in Wyoming, Michigan. The parcel of property is currently zoned by the City of Wyoming as R-2 single family residential. In the spring of 1986, the plaintiff submitted a preliminary plat plan to the Wyoming Planning Commission for development of the property as an R-2 single family residential development. The planning commission unanimously granted tentative approval of plaintiff’s preliminary plat. The city council, contrary to the commission’s recommendation, denied tentative approval of plaintiff’s preliminary plat.
Plaintiff filed a complaint seeking a writ of mandamus in Count i that would require the city council to grant tentative approval of his preliminary subdivision plat and to enjoin the council from further interfering with the proposed use of the property. Plaintiff also sought a writ of mandamus in Count ii requiring the Wyoming Chief Building Inspector to issue a building permit._
Plaintiff then filed a motion for summary disposition, MCR 2.116(C)(9) and (10). Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(8). The court denied plaintiff’s motion for summary disposition on Count i. Plaintiff’s motion for summary disposition on Count n was granted and no appeal was taken.
On appeal, plaintiff argues that the trial court erred when it refused to issue a writ of mandamus compelling the Wyoming City Council to grant tentative approval of plaintiff’s preliminary plat.
A motion for summary disposition based on GCR 1963, 117.2(2), now MCR 2.116(C)(9), requires a court to review only the pleadings, Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965), and when a material allegation is categorically denied, summary disposition under this section is improper. Pontiac School Dist v Bloomfield Twp, 417 Mich 579, 585; 339 NW2d 465 (1983). In its answer to plaintiff’s complaint, defendant denied all allegations that the plaintiff had complied with the requirements of the Michigan Subdivision Control Act. Thus, summary disposition under MCR 2.116(C)(9) was properly denied.
Upon the filing of a motion for summary disposition premised upon MCR 2.116(0(10), no genuine issue of material fact, the court is required to review the entire record to determine whether the nonmoving party has presented facts to support the claim or defense. Consequently, the trial court must look beyond the pleadings and consider affidavits, depositions, and interrogatories. In reviewing this evidentiary record, the trial court must give the benefit of any reasonable doubt to the nonmoving party in deciding whether a genuine issue of material fact exists. Rizzo v Kretschmer, 389 Mich 363, 371-372; 207 NW2d 316 (1973). Before judgment may be granted, the trial court must be satisfied that it is impossible for the claim asserted to be supported by the evidence at trial. Huff v Ford Motor Co, 127 Mich App 287, 293; 338 NW2d 387 (1983).
In Carlson v City of Troy, 90 Mich App 543, 547; 282 NW2d 387 (1979), this Court stated the requirements for a writ of mandamus:
The requirements for issuance of mandamus are:
" 'Plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one "where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” 38 CJ, p 598.’ Toan v McGinn, 271 Mich 28, 34; 260 NW 108 (1935). See also Koirtering v Muskegon, 41 Mich App 153; 199 NW2d 660 (1972).”
This Court will not interfere with the granting of mandamus if there is evidence to support the trial court’s findings. Absent abuse of discretion, the trial court’s ruling will not be disturbed.
The Subdivision Control Act of 1967 (sca), MCL 560.101 et seq.; MSA 26.430(101) et seq., requires municipalities to approve preliminary plats that conform to the standards set forth in the act. Specifically, § 106 of the sca, MCL 560.106; MSA 26.430(106), requires municipalities to approve a subdivision plat which complies with the statutory requirements, providing:
No approving authority or agency having the power to approve or reject plats shall condition approval upon compliance with, or base a rejection upon, any requirement other than those included in section 105.
Section 105 of the sca, MCL 560.105; MSA 26.430(105), defines the conditions for approval of a preliminary plat:
Approval of preliminary and final plats shall be conditioned upon compliance with:
(a) The provisions of this act.
(b) Any ordinance or published rules of a municipality or county adopted to carry out the provisions of this act.
By the provisions of § 106, a municipality cannot rely upon a reason not contained in § 105 to deny preliminary plat approval. This Court in Carlson, supra, p 552, expressly held:
Since § 106 of the statute limits the matters, or the subjects which may be a basis for rejection, the requirements for approval specified in defendant city’s resolution must be within those specific matters delineated in § 105. [See MCL 560.112(2); MSA 26.430(112X2).]
If the rejection is improper, an action for mandamus is available. Id.
In its resolution, the city council stated:
Whereas, the Wyoming City Council is presently proposing a resolution to the Wyoming Planning Commission to consider rezoning the subject property from its present R-2 Single Family Residential designation to an R-l Single Family Residential designation which would be consistent with the 1984 South Wyoming Land Use Plan, present zoning of adjacent properties and Consistent with the desires and wishes of adjacent landowners and if the resolution to rezone the property from R-2 to R-l is granted the plat, as it exists, may not meet the requirements of R-l zoning under the Wyoming Code, and it further appears that the best interests of the developer and the citizens of the City of Wyoming will be resolved more appropri ately by first resolving the question of zoning of the subject property, and
Whereas, the Wyoming City Council is concerned that the Plat evidences serious deficiencies in the following areas:
1. The subject property contains extensive low, marshy area with no information having been received from the Michigan Department of Natural Resources as to whether it qualifies as a "wetlands” area.
2. The size and character of the retention basin has not been resolved; therefore, the size and configuration of Lots 4-8 cannot be approved.
3. The anticipated street grade of Beckie Drive at Ivanrest Avenue does not provide for adequate access to existing structures on adjoining properties not in the Plat.
Now, therefore, be it resolved, that the City Council does hereby deny Preliminary Plat-Tentative Approval to the Moonlight #1 Subdivision.
We shall first examine the city council’s decision to consider rezoning of plaintiffs parcel from R-2 residential to R-l residential as a reason for denying tentative plat approval.
At the time plaintiff submitted his preliminary plat for tentative approval, the subject property was zoned R-2 residential and is presently zoned as such. On June 16, 1986, the same day that the resolution set forth above denying tentative approval of the preliminary plat was adopted, the city council also adopted an additional resolution which requested the Wyoming Planning Commission to consider rezoning the subject property to R-1 residential so as to conform with the surrounding area, which is zoned R-l. Defendant’s argument that proper rezoning is an implied precondition to the platting process is correct. See Oakland Court v York Twp, 128 Mich App 199; 339 NW2d 873 (1983). However, defendant’s reliance on Oak land Court in support of its position is misplaced. In Oakland Court, we were confronted with the situation where the developer’s proposed plat failed to conform with existing zoning of the property. This Court did not establish the proposition that future rezoning considerations are a proper basis for denial of the preliminary plat.
Further, § 105 of the sca does not include the possibility of rezoning as one of the permissible conditions upon which to base a rejection. Section 105(b) specifically states that approval of preliminary plats shall be conditioned upon compliance with "any ordinance or published rule of a municipality or county adopted to carry out the provisions of this act.” The proposed zoning in the case at hand has not been adopted, and thus is an impermissible reason to reject plaintiffs preliminary plat.
Defendant sets forth three other reasons upon which the rejection was based. As to the first reason, that "the subject property contains extensive low, marshy area with no information having been received from the Department of Natural Resources as to whether it qualifies as a 'wetlands’ area,” plaintiff was correct in arguing that defendant’s concern as to whether the subject property is considered wetland by the Michigan Department of Natural Resources is not a permissible ground for denying tentative approval under the Wyoming city ordinance.
Section 70.8(l)(a)(3) of the Wyoming Subdivision Regulations requires that, after tentative approval has been received from the city council for the preliminary plat, the plat must then be submitted to the dnr for review. Lack of dnr approval is not a valid basis for rejecting tentative approval of plaintiffs preliminary plat under MCL 560.105; MSA 26.430(105), nor is such rejection proper under the provisions of the Wyoming Subdivision Regulations.
The second reason advanced by the city council for its refusal to tentatively approve plaintiffs preliminary plat concerned "the size and character of the retention basin [which] has not been resolved.” Defendant relies upon MCL 560.111(1); MSA 26.430(111)(1) as a proper basis for rejecting preliminary plat approval. This section provides:
Before making or submitting a final plat for approval, the proprietor shall make a preliminary plat and submit copies to authorities as provided in sections 111 to 119. A preliminary plat shall show the name, location and position of the subdivision and the subdivision plan and layout in sufficient detail on a topographic map to enable a determination of whether the subdivision meets requirements for lots, streets, roads, and highways including drainage and floodplains.
Again, by its provisions, § 70.8(1)(a)(1) of the ordinance contemplates approval by the city council before submission of the preliminary plat to the Kent County Drain Commission. Further, we read § 111(1) as setting forth the requirements as to the contents of a preliminary report. The city council does not assert that plaintiff’s preliminary plat was defective under § 111 of the sca, which would give rise to a violation of § 111(1) of the act and thereby provide a permissible condition upon which to deny tentative approval under § 105 of the sca. We conclude that the city council’s second reason for denying tentative approval is not a permissible condition upon which to base a rejection pursuant to MCL 560.105; MSA 26.430(105).
As its third reason for denying tentative plat approval, the city council expressed a concern over "the anticipated street grade of Beckie Drive at Ivanrest Avenue [which] does not provide for adequate access to existing structures on adjoining properties not in the Plat.” Defendant, again, relies upon MCL 560.111(1); MSA 26.430(111)(1) as a proper basis for rejecting preliminary plat approval. As indicated above, defendant’s reliance upon § 111(1) of the act is misplaced.
A careful review of the record convinces us that the city council relied upon future rezoning as its main reason for denying plat approval. As indicated, MCL 560.105(b); MSA 26.430(105)(b) provides that approval of preliminary and final plats should be conditioned upon compliance with any ordinance or published rules of a municipality adopted to carry out the provisions of this act and authorizes a city to base a rejection only upon one of the enumerated conditions set forth in § 105. The possibility of future rezoning is not an "adopted ordinance” within the meaning of § 105. By its provisions, § 105 contemplates existing zoning. See Oakland Court, supra.
We therefore conclude that the court’s denial of plaintiffs motion for summary disposition was improper. MCR 2.116(C)(10). Pursuant to this Court’s holding in Carlson, supra, p 552, the requirements for rejection specified in the defendant city council’s resolution must be within the specific matters delineated in MCL 560.105; MSA 26.430(105). We therefore conclude that plaintiff has sustained his burden of establishing a clear, legal duty by defendant. See Carlson, supra, p 547; Burger King Corp v Detroit, 33 Mich App 382, 384; 189 NW2d 797 (1971).
Accordingly, we remand this matter to the trial court for the issuance of a writ of mandamus compelling the Wyoming City Council to grant preliminary plat approval.
Reversed and remanded.
Section 70.8(1)(a) of the ordinance states:
The proprietor, upon receiving tentative approval from the City Council, shall submit the Preliminary Plat to all authorities as required by the Subdivision Control Act, including, as appropriate, for approval or rejection:
(1) Kent County Drain Commission
(2) Michigan Department of State Highways and Transportation
(3) Michigan Department of Natural Resources
(4) Michigan Water Resources Commission
(5) Michigan Health Department Including for informational purposes:
(6) Kent County Plat Board
(7) All public utilities serving the area
(8) The Superintendent of the School District serving the area. | [
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Per Curiam.
In this case of first impression, defendant appeals as of right from his plea-based convictions of absconding and forfeiting bond in a criminal proceeding, MCL 750.119a; MSA 28.396(1), and being a fourth-offense habitual offender, MCL 769.12; MSA 28.1084. Defendant was sentenced to one year in the county jail, the sentence to be served concurrently to the sentence he was then serving. On appeal, defendant claims that his convictions should be overturned, since the absconding and forfeiting statute applies only to persons charged with a felony and awaiting trial and not to those, such as himself, who had already been convicted and obtained a bond as part of their probationary sentence. We agree and reverse defendant’s convictions.
A brief recitation of the facts is necessary to fully understand the legal issue raised. At the time defendant was charged with the instant offenses, he had already been convicted of larceny over $100 and of being a fourth-offense habitual offender and had been placed in a drug rehabilitation program. The trial judge had agreed to delay sentencing conditioned on defendant’s placement in and completion of an inpatient drug rehabilitation program. Defendant had been housed in the county jail until there was an opening at the drug rehabilitation center, at which time he was released on personal bond and placed in the program. Defendant was charged with the instant offenses after he left the program center without permission. As a result of having breached the conditions of his delayed sentence, defendant’s sentencing on the underlying convictions was advanced and he was sentenced to one year in the county jail. The instant charges followed.
The absconding and forfeiting statute, MCL 750.199a; MSA 28.396(1), states:
Any person who shall abscond on or forfeit a bond given in any criminal proceedings wherein a felony is charged shall be deemed guilty of a felony. [Emphasis supplied.]
It is the fundamental rule of statutory construction that ordinary words are given their plain and ordinary meaning. When a statute is clear and unambiguous, judicial construction is not permitted. In re Contempt of Stone, 154 Mich App 121; 397 NW2d 244 (1986).
We believe that the use of the word "charged” in the statute evidences the Legislature’s intent to limit the statute to cases in which charges are pending and a defendant is awaiting trial. This belief is consistent with our holding in People v Litteral, 75 Mich App 38, 43-44; 254 NW2d 643 (1977), where we concluded that the purpose of the statute was to prevent defendants from delaying judicial proceedings on pending charges:
This statute was enacted to ensure that criminal defendants not impede the judicial process by failing to be present at court proceedings. The problem was serious enough that the Legislature made such a violation a felony. Whether a defendant is a totally irresponsible person, who recklessly and foolishly fails to make himself available while felony charges are pending against him, or actively and intentionally flees the pursuit of the law should make little difference under the statute. [Emphasis supplied.]
While the issue in Litteral concerned the intent required under the statute, the case is still relevant to the instant issue.
In the present case, deféndant had already been charged and convicted at the time the instant charges were lodged against him. Thus the statute did not pertain to him. Consequently, both defendant’s conviction of absconding and forfeiting and of being a fourth-offense habitual offender are reversed.
Our disposition renders moot defendant’s second issue: whether the prosecutor abused his discretion in charging defendant as a fourth-offense habitual offender. Nonetheless, we do not hesitate to inform the prosecutor that we share the trial judge’s feelings as expressed at the time defendant entered his guilty plea:
The Court: You’re attaching an habitual fourth to the absconding?
The Prosecutor: That’s correct, your Honor.
The Court: All right.
Defense Counsel: It’s the old beating of the dead horse.
The Court: It’s incredible. It’s just incredible.
Reversed and remanded for dismissal of the charges lodged against defendant. | [
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WILDER, J.
On appeal, plaintiffs argue that (1) the trial court erred when it struck plaintiffs’ motion for class certification, (2) the trial court erred when it denied plaintiffs’ motion to reinstate the class action allegations, and (3) the trial court erred when it granted summary disposition in favor of defendants. We affirm.
This case involves “forwarding companies” that contract with lending institutions to handle the collection services on delinquent accounts. After contracting with the lending institutions, these forwarding companies would in turn retain licensed repossession agents to carry out repossessions on behalf of the lenders. Plaintiffs allege that the forwarding companies themselves need to be licensed as “collection agencies,” and their failure to do so is the underlying basis for plaintiffs’ lawsuit.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff George Badeen, a licensed collection agency manager, owns plaintiff Midwest Recovery and Adjustment, Inc. (Midwest Recovery). Midwest Recovery is a licensed collection agency that is hired by automobile lenders to repossess financed vehicles whose owners have defaulted on their loans. In the past, automobile lenders would contract directly with repossession agents, like Midwest Recovery. However, more recently, lenders are contracting with forwarding companies. Apparently, repossession agents receive less money when hired by forwarding companies than when hired directly by lending institutions. Plaintiffs claim that this practice has caused them harm.
On April 5, 2010, plaintiffs filed a complaint against defendants, which include forwarding companies (the “forwarder defendants”) and lending institutions (the “lending defendants”).* In count one of the complaint, plaintiffs sought certification of a class action, in which Badeen would represent the interests of all automobile repossession agencies and their owners who held a license to collect debts in Michigan in the preceding six years. In count two, plaintiffs sought an injunction prohibiting the forwarder defendants from violating the Occupational Code, MCL 339.101 et seq., by soliciting or performing collection activities in Michigan without a license. In count three, plaintiffs asserted a claim of civil conspiracy, alleging that the forwarder defendants and lender defendants “acted in concert to violate the Occupational Code.” In count four, plaintiffs alleged that the forwarder defendants intentionally interfered with plaintiffs’ business relations with the lender defendants. In count five, plaintiffs alleged that the forwarder defendants intentionally interfered with plaintiffs’ contracts with the lender defendants. In count six, plaintiffs asserted a claim of negligence per se against the forwarder defendants for breach of their statutory duty under the Occupational Code.
On May 14, 2010, plaintiffs filed an amended complaint, which differed only in the naming of a defendant (Remarketing Solutions was named in place of Manheim Recovery Solutions). On September 8, 2010, plaintiff filed a second amended complaint, which differed from the first amended complaint in several substantive ways. In count two of the second amended complaint, plaintiffs sought to enjoin the lender defendants from hiring unlicensed debt collectors. In count three, plaintiffs alleged that the forwarder defendants and the lender defendants acted in concert to violate both the Occupational Code and the Michigan regulation of collection practices act (MRCPA), MCL 445.251 et seq. In count six, plaintiffs alleged that the lender defendants also violated their statutory duty under the MRCPA. In two additional counts, plaintiffs alleged violations of the Occupational Code and the MRCPA. Several defendants filed answers to the complaint or amended complaints.
A. CLASS ACTION CERTIFICATION
On July 21, 2010, PAR, Inc. (PAR), filed a notice of Badeen’s failure to file a timely motion to certify a class pursuant to MCR 3.501(B), claiming that more than 91 days had lapsed from the date of the original complaint alleging a class action. Other defendants filed similar notices or joinders in the notice.
On July 30, 2010, Badeen filed a motion for class certification, arguing that he was a member of the proposed class; that the proposed class was numerous, making joinder impracticable; that common questions predominated; that his claims were typical of the class; that he would adequately assert and protect the class; and that a class action would be superior.
PAR filed a motion to strike Badeen’s motion for class certification, contending that Badeen’s motion was untimely. PAR argued that once it filed its notice, the class action allegations were deemed stricken as a matter of law and, as a result, Badeen needed to first seek leave of the court to reinstate his class action allegations before he was permitted to move for class action certification. Other defendants filed similar objections to the motion for class certification or concurrences in PAR’s motion.
On August 11, 2010, Badeen filed a motion to strike the notices of failure to file a motion for class certification. In the brief in support of the motion, Badeen argued that the 91-day time limit provided in MCR 3.501(B) runs from the date of the filing of the most recent amended complaint containing class action allegations because the court rule uses the word “a,” not “the.” Alternatively, Badeen argued that the class action allegations should be reinstated because his attorney’s “misconception of the court rule” constituted excusable neglect as permitted under the court rule.
On August 20, 2010, PAR filed a brief in opposition to Badeen’s motion to strike. PAR argued that the 91-day time limit runs from the filing of the first complaint containing class action allegations based on the language and purpose of the rule. PAR further argued that misinterpretation of a court rule does not constitute excusable neglect.
On August, 25, 2010, the trial court held a hearing on the cross-motions to strike. The parties’ arguments were consistent with their briefs, but defendants additionally argued that plaintiffs would not be prejudiced if the class action allegations were stricken. The trial court held that the 91-day time limit ran from the filing of the original complaint containing class action allegations and that plaintiffs’ failure to timely file a motion for class certification did not constitute excusable neglect warranting reinstatement of the class action allegations. On September 13, 2010, the trial court entered an order granting PAR’s motion to strike Badeen’s motion for class certification and denying Badeen’s motion to strike the notices of failure to file for class certification or to reinstate the class action allegations.
B. SUMMARY DISPOSITION
On October 6, 2010, both the forwarder defendants and the lender defendants moved for summary disposition pursuant to MCR 2.116(C)(8). Primarily, they argued that because forwarders are not collection agencies under the Occupational Code, all plaintiffs’ claims necessarily fail. Plaintiffs responded by arguing, in part, that forwarders must be licensed because they solicit lenders to collect claims and are “indirectly” involved in collections.
After holding a hearing, the trial court entered an opinion and order on February 14, 2011, granting defendants’ motions for summary disposition. The trial court found that the statutes at issue were unambiguous, that the forwarder defendants were not collection agencies, and that, therefore, plaintiffs failed to state a claim on which relief could be granted. Plaintiffs’ appeal to this Court ensued.
II. STANDARDS OF REVIEW
We review issues of statutory interpretation de novo. Krohn v Home-Owners Ins Co, 490 Mich 145, 155; 802 NW2d 281 (2011). This Court must begin by considering the language of the statute. Rambin v Allstate Ins Co, 297 Mich App 679, 684; 825 NW2d 95 (2012).
In interpreting a statute, a court’s goal is to give effect to the Legislature’s intent. A court may not construe a statute unless it is ambiguous; if the statute is unambiguous, the court will apply it as written. If a statute is ambiguous, construction is permitted, and the rules of statutory construction “merely serve as guides” toward the ultimate goal of discerning the intent of the Legislature. “[A] provision of the law is ambiguous only if it ‘irreconcilably conflict[s]’ with another provision or when it is equally susceptible to more than a single meaning.” [East Lansing v Thompson, 291 Mich App 34, 36-37; 804 NW2d 567 (2010) (citations omitted).]
A trial court’s decision on a motion for summary disposition is also reviewed de novo. Coalition for a Safer Detroit v Detroit City Clerk, 295 Mich App 362, 367; 820 NW2d 208 (2012). “MCR 2.116(C)(8) tests whether a claimant has failed to state a cognizable claim. For purposes of a motion for summary disposition under MCR 2.116(C)(8), this Court accepts all well-pleaded factual allegations as true, and construes them in a light most favorable to the nonmoving party.” Id.
“The interpretation and application of court rules present questions of law to be reviewed de novo using the principles of statutory interpretation.” Lamkin v Engram, 295 Mich App 701, 707; 815 NW2d 793 (2012). Thus, the goal in interpreting is to give effect to the rulemaker’s intent as expressed in the court rule’s terms, giving the words their plain and ordinary meaning. Peterson v Fertel, 283 Mich App 232, 235-236; 770 NW2d 47 (2009). “ Tf the language poses no ambiguity, this Court need not look outside the rule or construe it, but need only enforce the rule as written.’ ” Id. at 236 (citation omitted). But “[i]f judicial construction is required, this Court must adopt a construction that best accomplishes the purpose of the court rule. While the Court may consider a variety of factors, it should always use common sense.” Vyletel-Rivard v Rivard, 286 Mich App 13, 22; 777 NW2d 722 (2009) (citations omitted).
III. ANALYSIS
A. CLASS CERTIFICATION
Plaintiffs first argue that the trial court erred when it determined that plaintiffs’ motion to certify the action as a class action was untimely under the 91-day deadline imposed by MCR 3.501. We agree, but for reasons hereinafter stated, plaintiffs are not entitled to any relief on appeal.
Badeen filed his motion for class certification on July 30, 2010. This was within 91 days of the filing of the first amended complaint on May 14, 2010, but more than 91 days after the filing of the original complaint on April 5, 2010. Both the original and amended complaints contained the same class action allegations. Because there are no decisions of this Court or the Michigan Supreme Court addressing whether the motion for class certification must be filed within 91 days of the original complaint or an amended complaint, this is an issue of first impression.
This Court must first consider the language of the court rule. Vyletel-Rivard, 286 Mich App at 22. The court rule governing class actions is MCR 3.501. MCR 3.501(B) provides, in part:
(1) Motion.
(a) Within 91 days after the filing of a complaint that includes class action allegations, the plaintiff must move for certification that the action may be maintained as a class action.
(b) The time for filing the motion may be extended by order on stipulation of the parties or on motion for cause shown. [Second emphasis added.]
The Supreme Court’s use of the word “a” indicates that a plaintiff may file more than one complaint containing class action allegations, as in this case. See Robinson v City of Lansing, 486 Mich 1, 14; 782 NW2d 171 (2010) (noting that “the” and “a” have different meanings and that “the” is a definite article and “a” is an indefinite article). Further, while there are many dictionary definitions of the word “a,” the definitions most pertinent to this case are “any” or “every.” Random House Webster’s College Dictionary (1997). Accordingly, the court rule is properly interpreted as meaning that “[w]ithin 91 days after the filing of [any] complaint that includes class action allegations, the plaintiff must move for certification that the action may be maintained as a class action.”
Because plaintiffs filed their original complaint on April 5, 2010, plaintiffs had 91 days, or until July 6, 2010, to move for class certification. However, MCR 2.118(A) allows a party to amend a pleading once as a matter of course as long as 14 days have not lapsed after receiving a responsive pleading. As of May 14, 2010, no defendants had filed or served any answer to plaintiffs’ original complaint. Thus pursuant to MCR 2.118(A), plaintiffs were permitted to amend the complaint on May 14, 2010.
Having properly amended their original complaint, plaintiffs’ original complaint ceased to have any effect, and plaintiffs were not required to move for class certification by July 6, 2010. As this Court has explained, an amended pleading supersedes the former pleading, making the original pleading “ ‘abandoned and withdrawn.’ ” Grzesick v Cepela, 237 Mich App 554, 562; 603 NW2d 809 (1999), citing MCR 2.118(A)(4) and quoting 61B Am Jur 2d, Pleading, pp 92-93; see also Nippa v Botsford Gen Hosp, 251 Mich App 664, 679; 651 NW2d 103 (2002), vacated and remanded on other grounds 468 Mich 882 (2003). Because the original complaint became “abandoned and withdrawn” by virtue of the filing of the first amended complaint, the July 6, 2010, deadline tied to the original complaint no longer had any effect. Therefore, consistent with our interpretation of MCR 3.501, plaintiffs had 91 days from the May 14, 2010, filing of the first amended complaint to move for class certification. Because plaintiffs moved for class certification on July 30, 2010, within 91 days of May 14, 2010, the date the first amended complaint was filed, we conclude that the trial court erred when it held that plaintiffs’ motion was untimely under the court rule.
We reject as unwarranted defendants’ contention that permitting an amended complaint to effectively “restart the clock,” would introduce undue delay in the initiation of class action litigation. While the timing requirement at issue “was designed to prevent cases from remaining pending for extended periods without the propriety of a class action being raised,” Hill v City of Warren, 276 Mich App 299, 306; 740 NW2d 706 (2007) (quotation marks omitted), citing GCR 1963, 208.2(A), the predecessor rule to MCR 3.501(B)(1), a plaintiff may amend its complaint only once as a matter of course and, even then, under significant timing restrictions. MCR 2.118(A)(1). If a plaintiff wishes to amend its complaint after the time for doing so as a matter of course has expired, the plaintiff must then either obtain the defendant’s consent or obtain the trial court’s permission. MCR 2.118(A)(2). The time limitations and additional requirements concerning amendments of complaints are more than sufficient to prevent “cases from remaining pending for extended periods without the propriety of a class action being raised.” Hill, 276 Mich App at 306 (quotation marks and citation omitted).
B. COLLECTION AGENCIES UNDER THE MRCPA AND THE OCCUPATIONAL CODE
Having concluded that the trial court erred by granting PAR’s motion to strike Badeen’s motion for class certification, we next consider plaintiffs’ assertion that the trial court erred by holding that defendants were not collection agencies within the meaning of the Occupational Code and granting summary disposition in favor of defendants on that basis. Because we hold that the trial court properly determined that defendants did not violate either the MRCPA or the Occupational Code, we affirm the trial court’s ruling.
Article 6 of the Occupational Code, MCL 339.601 et seq., provides that “[a] person shall not engage in or attempt to engage in the practice of an occupation regulated under this act or use a title designated in this act unless the person possesses a license or registration issued by the department for the occupation.” MCL 339.601(1). MCL 339.904, under the Occupational Code, in turn, prohibits anyone from “operat[ing] a collection agency or commenc[ing] in the business of a collection agency without” being licensed. Plaintiffs claim that the forwarder defendants have violated these sections by acting as collection agencies without being licensed.
MCL 445.252(s) of the MRCPA prohibits a “regulated person” from “[e]mploying a person required to be licensed under article 9 of [the Occupational Code MCL 339.901 to 339.916] to collect a claim unless that person is licensed under article 9 [MCL 339.901 to 339.916].” Plaintiffs claim that the lender defendants have violated this provision by hiring the forwarder defendants to collect claims without the forwarder defendants being licensed.
We find that the forwarder defendants and lender defendants have not violated the Occupational Code or the MRCPA because the forwarder defendants are not “collection agencies” under Article 9 of the Occupational Code. MCL 339.901(b) defines “collection agency” as
a person directly or indirectly engaged in soliciting a claim for collection or collecting or attempting to collect a claim owed or due or asserted to be owed or due another, or repossessing or attempting to repossess a thing of value owed or due or asserted to be owed or due another arising out of an expressed or implied agreement.
The plain and unambiguous language supports the trial court’s finding that forwarders are not collection agencies because forwarders do not “solicit a claim for collection” when they hire collection agencies. “Solicit” is defined, in part, as “to try to obtain by earnest plea or application,” and “to make a petition or request for something desired.” Random House Webster’s College Dictionary (2001). MCL 339.901(a) provides that “claim” and “debt” both have the exact same meaning, primarily “an obligation or alleged obligation for the payment of money ....” As a result, the phrase “soliciting a claim for collection,” found in MCL 339.901(b), means requesting the debtor to fulfill his or her obligation on the debt.
Further, the Legislature’s use of the word “indirectly” in MCL 339.901(b) does not indicate that the statute applies to forwarders. The phrase “directly or indirectly engaged in” applies to both the phrase preceding the comma and the phrase after the comma. Thus, a collection agency includes a person who “directly or indirectly engaged in. . . repossessing or attempting to repossess a thing of value owed. .. .” Grammatically, the comma technically does not belong in the statute because the phrase “repossessing or attempting to repossess a thing of value” is not an independent clause. See Strunk & White, The Elements of Style (New York: Longman, 4th ed, 2000), p 5 (noting that a comma is used before a conjunction when it introduces an independent clause). This phrase is not independent because it is clear that the phrase’s subject is found back at the beginning of the sentence in another phrase, “a person.” However, because of the inordinate number of “ors” in the statute, we discern that the use of the comma was to help identify the two main components of the definition. And because the form of the word “soliciting” matches the form of the word “repossessing,” we are convinced that the Legislature intended for “directly or indirectly engaged in” to apply to both similarly, otherwise, the pattern of the section would be asymmetric.
Thus, the issue boils down to whether the forwarder defendants “directly or indirectly engaged in repossessing or attempting to repossess” collateral. We conclude that they did not. “Engage” means, in part, “to occupy the attention or efforts of; involve.” Random House Webster’s College Dictionary (1997). And “occupy” is defined, in part, as “to fill up, employ, or engage.” Id. Plaintiffs’ complaint alleges that the forwarder defendants hired and contracted with “local, licensed, Michigan debt collection agencies to repossess the collateral sought to be seized.” However, the fact that the forwarder defendants contracted out the work demonstrates that they were not “occupied” or “involved” with the act of repossession itself. There were no allegations that the forwarding defendants had any involvement or input whatsoever with the actual repossession effort process, and we decline to find that a forwarder who contracts out the actual repossession process is “indirectly engaged in repossessing or at tempting to repossess.” Such an extension of the process would be too attenuated.
Our construction of the phrase “indirectly engaged in repossessing or attempting to repossess” is consistent with the purpose of the statute “to protect the debtor and the creditor from the potentially improper acts of a third-party collection agency.” Asset Acceptance Corp v Robinson, 244 Mich App 728, 732; 625 NW2d 804 (2001). Because forwarders are not involved with “collection activities” (they do not collect debts, they do not contact consumers, and they are not involved with the actual act of repossession), requiring them to be licensed would not further the purpose of the statute.
Because forwarders are not required to be licensed, the forwarder defendants did not violate the Occupational Code, and the lender defendants did not violate the MRCPA. Accordingly, the trial court did not err by granting defendants’ motions for summary disposition.
Affirmed. No costs are taxable pursuant to MCR 7.219, neither party having prevailed in full.
Meter, P.J., and Fitzgerald, J., concurred with Wilder, J.
The forwarder defendants are PAR, Inc., doing business as PAR North America; CenterOne Financial Services, L.L.C.; First National Repossessors, Inc.; Millennium Capital and Recovery Corporation; MV Connect, L.L.C., doing business as IIA, L.L.C.; Renovo Services, L.L.C.; Renaissance Recovery Solutions, Inc.; ASR Nationwide, L.L.C.; Diversified Vehicle Services, Inc.; National Asset Recovery Corp.; and Manheim Recovery Solutions.
The lender defendants are TD Auto Finance, L.L.C.; Toyota Motor Credit Corporation; Nissan Motor Acceptance Corporation; Santander Consumer U.S.A.; PNC Bank, N.A.; Bank of America, N.A.; Fifth Third Bank; GE Money Bank; and the Huntington National Bank.
Ninety one days from April 5, 2010, is actually July 5, 2010, but the court was closed that day for the Independence Day holiday. Thus, pursuant to MCR 1.108, the next available day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order is used. | [
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ON REMAND
M. J. KELLY, J.
This case returns to us on remand from our Supreme Court. In re Carroll, 493 Mich 899 (2012). We previously had determined that, under MCL 500.3107(l)(a), respondent, Auto Club Insurance Association, had to pay the entire fee of petitioner, Alan A. May, for services rendered as the conservator of Edward Carroll’s estate. See In re Carroll, 292 Mich App 395, 407; 807 NW2d 70 (2011). We are called upon to again address this issue, but to do so in light of our Supreme Court’s recent decisions in Johnson v Recca, 492 Mich 169; 821 NW2d 520 (2012), and Douglas v Allstate Ins Co, 492 Mich 241; 821 NW2d 472 (2012). After reviewing those decisions, we conclude that a conservator’s fees do not necessarily constitute fees for an injured person’s care, recovery, or rehabilitation, even when the injured person would not have needed the conservator’s services were it not for his or her injuries. Instead, the conservator’s fees will be compensable under MCL 500.3107(l)(a) only to the extent that the conservator’s services were directly related to the injured person’s care, recovery, or rehabilitation. Because May has not challenged the probate court’s finding that only $99 of his fee was related to Carroll’s care, recovery, or rehabilitation, we must affirm the probate court’s order.
I. BASIC PACTS
Carroll was permanently disabled after he suffered a closed head injury in an automobile accident in 1982. In re Carroll, 292 Mich App at 397. Carroll’s wife cared for him until she died in November 2008. Id. at 398. Because Carroll was incapable of managing his own property, the probate court appointed May to be Carroll’s conservator in December 2008. Id.
In March 2009, May petitioned the probate court for an order compelling Auto Club — Carroll’s no-fault vehicle insurer — to pay him $6,816.70 in fees for services rendered. Id. Auto Club argued that it had no obligation to pay May’s fees because his fees were not allowable expenses under MCL 500.3107(1)(a). In re Carroll, 292 Mich App at 398. The probate court examined May’s itemized bills and determined that the majority of his services were not related to Carroll’s care, recovery, or rehabilitation, as required under MCL 500.3107(1)(a). Accordingly, it ordered Auto Club to pay $99 of May’s fee and it ordered Carroll’s estate to pay the remainder. In re Carroll, 292 Mich App at 398-399.
May then appealed in this Court.
On appeal, this Court did not examine the individual services that May performed for Carroll to determine whether the specific service was for Carroll’s care, recovery, or rehabilitation. Instead, we examined whether the appointment of a conservator to handle an injured person’s estate was generally the type of service that was reasonably necessary for the injured person’s care, recovery, or rehabilitation. Id. at 400. Relying on the expansive interpretation of the term “care” utilized by the Court in Heinz v Auto Club Ins Ass’n, 214 Mich App 195, 198; 543 NW2d 4 (1995), we concluded that, when a court determines that an injured person is so disabled that he or she requires a conservator to handle his or her estate, the services provided by the conservator necessarily qualify as services for the injured person’s care. In re Carroll, 292 Mich App at 400-403. That is, we concluded that a conservator’s fee will always be compensable under MCL 500.3107(1)(a) when the injured person’s need for a conservator was itself causally related to an automobile accident.
We rejected Auto Club’s contention that the conservator’s services were not compensable under MCL 500.3107(1)(a) because the services were, in effect, replacement services under MCL 500.3107(1)(c). We recognized that the issue was complicated by the nature of the conservator’s services: a conservator manages the injured person’s property and business affairs, which the injured person would likely have performed on his or her own behalf but for the accident. In re Carroll, 292 Mich App at 403-405. Nevertheless, we concluded that a conservator’s services were closer to the “care” referred to in MCL 500.3107(1)(a) than to the “ordinary living activities” that are compensated under MCL 500.3107(1)(c). In re Carroll, 292 Mich App at 404. Indeed, we characterized a conservator’s services as “extraordinary professional services ....” Id.
Finally, we rejected Auto Club’s contention that our Supreme Court’s decision in Griffith v State Farm Mut Auto Ins Co, 472 Mich 521; 697 NW2d 895 (2005), mandated a different result. We acknowledged that our Supreme Court had narrowly interpreted MCL 500.3107(1)(a) to require a direct link between the good or service provided and the injured person’s need for care, but distinguished Griffith on the facts. See In re Carroll, 292 Mich App at 406. Specifically, we noted that there are some services that, although one might be able to characterize them as replacement services in the broadest sense, because the services are so intimately connected to the injured person’s care, are compensable under MCL 500.3107(1)(a):
The conservator’s services here are more akin to attendant care provided by a nursing assistant who handles the injured person’s intimate hygiene needs; in that situation, although the injured person would normally have handled those needs on his or her own, as a result of the injury he or she is no longer able to do so. Because expenses incurred to have someone perform those hygiene services are reasonably incurred for the injured person’s care, recover, or rehabilitation, the nursing assistant’s services are compensable under MCL 500.3107(1)(a). Similarly, because the need for the conservator was causally connected to Carroll’s injury and the expense is reasonably necessary for his care, it too is compensable under MCL 500.3107(l)(a). [In re Carroll, 292 Mich App at 407 (citations omitted).]
We then held that May’s entire fee was related to Carroll’s care under MCL 500.3107(1)(a). For that reason, we reversed the probate court’s opinion and order and remanded for further proceedings. In re Carroll, 292 Mich App at 407.
Auto Club then sought leave to appeal in our Supreme Court. Our Supreme Court initially held the application in abeyance pending its decisions in Johnson and Douglas. In re Carroll, 493 Mich 899. After it released those opinions, the Court, in lieu of granting leave to appeal, vacated our judgment and remanded the case back to this Court for reconsideration in light of those decisions. Id.
II. FIRST PARTY NO-FAULT BENEFITS
A. STANDARD OF REVIEW
This Court reviews de novo the proper interpretation of the no-fault act, MCL 500.3101 et seq. Johnson, 492 Mich at 173.
B. NATURE OF THE BENEFITS
“A person injured in an automobile accident is entitled to a variety of personal protection insurance benefits — often referred to as PIP benefits — from his or her insurance carrier under MCL 500.3107.” In re Carroll, 292 Mich App at 400. The statutory PIP benefits include “four general categories of expenses and losses: survivor’s loss, allowable expenses, work loss, and replacement services.” Johnson, 492 Mich at 173, citing MCL 500.3107 and MCL 500.3108. Two of those categories are relevant here: allowable expenses and replacement services.
The Legislature provided that allowable expenses consist “of all reasonable charges incurred for reason ably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(1)(a). That is, the Legislature required no-fault insurers to compensate injured persons for the expenses associated with “products, services and accommodations” that were reasonably necessary for the “injured person’s care, recovery, or rehabilitation ....” MCL 500.3107(1)(a). Notably, the Legislature provided that allowable expenses included expenses reasonably necessary for the care of the injured person; it did not limit this category to those expenses necessary to care for the injured person’s injury. In its broadest sense, the phrase “for an injured person’s care,” as used in MCL 500.3107(1)(a), can refer to any product, service, or accommodation that one might use to provide for another’s well-being. See The Oxford English Dictionary (2d ed, 1991) (defining the substantive form of the word “care” to mean “oversight with a view to protection, preservation, or guidance” and defining the verb form as “to take thought for, provide for, look after, take care of”). And traditionally this Court has construed this phrase broadly to refer to any product, service, or accommodation reasonably necessary to care for the person as an injured person. See, e.g., Heinz, 214 Mich App at 197-198 (rejecting the argument that the Legislature limited MCL 500.3107[1][a] to “medical care” and stating that “if a person is so seriously injured in an automobile accident that it is necessary to appoint a guardian and conservator for that person,” the services are reasonably necessary to provide for the injured person’s care); cf. Griffith, 472 Mich at 534-536.
The Legislature also provided that no-fault insurers must cover “[e]xpenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he or she had not been injured, an injured person would have performed” for his or her own benefit or the benefit of his or her dependents. MCL 500.3107(1)(c). The Legislature did not define this benefit as the “replacement services” benefit. Nevertheless, courts commonly refer to this benefit as the “replacement services” PIP benefit. See, e.g., Johnson, 492 Mich at 173, 174 (inserting the label “replacement services” into the statutory scheme and referring to this benefit as the “replacement services” benefit). Traditionally, this benefit applied to all manner of ordinary or mundane household services that the injured person might have performed. See Fortier v Aetna Cas & Surety Co, 131 Mich App 784, 793; 346 NW2d 874 (1984) (noting that courts had applied the benefit to expenses for trash disposal, stove repairs, car maintenance, babysitting, plumbing repairs, and woodcutting). However, beginning with its decision in Griffith and culminating with its decisions in Johnson and Douglas, our Supreme Court altered the analytical framework traditionally applied to the benefits provided under MCL 500.3107(1)(a) and MCL 500.3107(1)(c).
C. GRIFFITH
In Griffith, our Supreme Court examined whether the cost of a product — food—was compensable as an allowable expense under MCL 500.3107(1)(a). Douglas Griffith had been seriously and permanently injured in a car accident and required assistance to eat and bathe. Griffith, 472 Mich at 524. Before returning home, his no-fault insurer had covered the full cost of his inpatient treatment, which included the cost of his meals. Id. at 524-525. However, after he returned home, Douglas’s no-fault insurer refused to pay for his food. Id. at 525. Douglas’s wife, Phyllis Griffith, who served as Douglas’s guardian, sued the no-fault insurer to recoup Douglas’s food expenses. Id.
In determining whether food constituted an allowable expense, our Supreme Court began its analysis by emphasizing the limited nature of no-fault benefits: “According to the plain language of MCL 500.3105(1), a no-fault insurer is only required to pay benefits ‘for accidental bodily injury’ arising out of an automobile accident.” Griffith, 472 Mich at 526. The word “for,” it explained, implies a causal connection; that is, the insurer’s liability to pay benefits under the no-fault act is only triggered “to the extent that the claimed benefits are causally connected to the accidental bodily injury arising out of an automobile accident.” Id. at 531. In addition, the Court held that a no-fault insurer is liable to pay benefits only for “those injuries that are caused by the insured’s use of a motor vehicle.” Id.
The Court noted that it was uncontested that Douglas Griffith’s injuries arose from his use of an automobile, but questioned whether his food expenses were causally related to his injuries: “[Phyllis Griffith] does not claim that her husband’s diet is different from that of an uninjured person, that his food expenses are part of his treatment plan, or that these costs are related in any way to his injuries.” Id. at 531. Because Douglas’s food expenses were ordinary, everyday food expenses, the Court concluded that Phyllis Griffith had failed to establish that his food expenses were for accidental bodily injury, as required under MCL 500.3105(1). Griffith, 472 Mich at 531-532. Nevertheless, despite having determined that Phyllis had failed to establish the requisite causal link, the Court went on to explain that ordinary food would also not constitute a product for an injured person’s care, recovery, or rehabilitation under MCL 500.3107(1)(a). Griffith, 472 Mich at 536, 540.
The Court noted that it was undisputed that Douglas’s food expenses were not related to his recovery or rehabilitation: “Indeed, [Phyllis Griffith] does not allege that the food has special curative properties that might advance Griffith’s recovery or rehabilitation.” Id. at 532-533. The key issue, it explained, was whether food expenses were compensable as part of Douglas’s in-home “care.” Although the Court recognized that the ordinary meaning of the term “care” can be broadly understood to encompass anything that is reasonably necessary to the provision of a person’s protection or charge, it concluded that the Legislature did not intend to give the term its broadest meaning. Id. at 533. Instead, it determined that the word “care” must be understood in context and in light of the fact that the Legislature associated it with the words “recovery” and “rehabilitation.” Id. 533-534. Using the interpretive tool referred to as noscitur a sociis, the Court explained that it must give the word “care” a more limited meaning: “[W]e must neither read ‘care’ so broadly as to render nugatory ‘recovery and rehabilitation’ nor construe ‘care’ so narrowly that the term is mere surplusage.” Id. at 534.
The Court then went on to conclude that the term “care” referred to the “care” necessitated by the injuries sustained in an automobile accident:
As noted above, both “recovery” and “rehabilitation” refer to an underlying injury; likewise, the statute as a whole applies only to an “injured person.” It follows that the Legislature intended to limit the scope of the term “care” to expenses for those products, services, or accommodations whose provision is necessitated by the injury sustained in the motor vehicle accident. “Care” is broader than “recovery” and “rehabilitation” because it may encompass expenses for products, services, and accommoda tions that are necessary because of the accident but that may not restore a person to his preinjury state. [Id. at 535 (emphasis added).]
Applying this understanding of the term “care,” the Court concluded that Douglas’s food expenses were not compensable. It did so, in part, because there was no evidence that “he now requires different food than he did before sustaining his injuries as part of his treatment plan.” Id. at 536. Although it acknowledged that food was necessary for Douglas’s survival, it emphasized that his need for food did not arise from his injuries:
Unlike prescription medications or nursing care, the food that [Douglas] Griffith consumes is simply an ordinary means of sustenance rather than a treatment for his “care, recovery, or rehabilitation.” In fact, if [Douglas] Griffith had never sustained, or were to fully recover from, his injuries, his dietary needs would be no different than they are now. We conclude, therefore, that his food costs are completely unrelated to his “care, recovery, or rehabilitation” and are not “allowable expenses” under MCL 500.3107(1)(a). [Griffith, 472 Mich at 536.]
Thus, under the decision in Griffith, a no-fault insurer is only obligated to pay benefits for care — as that term is used in MCL 500.3107(l)(a) — when the product, service, or accommodation was necessitated by the injury; that is, if the product, service, or accommodation would not have been necessary but for the injuries sustained in the accident, then it is compensable as an allowable expense for the injured person’s care under MCL 500.3107(l)(a).
D. JOHNSON
Our Supreme Court again considered the nature and extent of allowable expenses in Johnson. In that case, John Recca struck Penny Johnson with his vehicle while she was walking. Johnson, 492 Mich at 172. Johnson sued Recca’s no-fault insurer under MCL 500.3135(3)(c) for benefits in excess of those provided under MCL 500.3107. Johnson, 492 Mich at 172. On appeal, our Supreme Court had to determine whether Recca’s no-fault insurer had an obligation under MCL 500.3135(3)(c) to compensate Johnson for replacement services beyond that which she would have received under MCL 500.3107(1) had she had her own no-fault insurer. Johnson, 492 Mich at 172-173. The Court concluded that this Court had erred when it concluded that replacement services were recoverable as a subcategory of allowable expense. Id. at 176.
In deciding this issue, the Court first recognized that the Legislature had abolished tort liability arising from the ownership, maintenance, or use of a motor vehicle, subject only to the exceptions stated under MCL 500.3135. Johnson, 492 Mich at 175. The Court then examined the exception provided under MCL 500.3135(3)(c), which provided that a person remains liable in tort for damages “ ‘for allowable expenses, work loss, and survivor’s loss as defined in [MCL 500.3107 to MCL 500.3110] in excess of the daily, monthly, and 3-year limitations contained in those sections.’ ” Johnson, 492 Mich at 175, quoting MCL 500.3135(3) (emphasis omitted). The Court explained that this Court had erred when it treated the Legislature’s reference to “allowable expenses” in MCL 500.3135(3)(c) as encompassing replacement services: “The first and most obvious criticism of the Court of Appeals’ conclusion that replacement services constitutes a subcategory of allowable expenses is that this simply overlooks the Legislature’s own statutory organization, which makes clear that allowable expenses and replacement services constitute separate and distinct categories of PIP benefits.” Johnson, 492 Mich at 176. The Supreme Court concluded that the Legislature’s decision to specifically refer to allowable expenses under MCL 500.3135(3)(c) and to omit any reference to replacement services showed that the Legislature intended to abolish tort liability for replacement services. Johnson, 492 Mich at 175-176 (“MCL 500.3135(3)(c) does not mention damages for replacement services. Therefore, in a third-party tort action, damages for replacement services are not recoverable ....”). This, it explained, also followed from the Legislature’s decision to organize the statutory provisions in the way that it did. Johnson, 492 Mich at 177 (“The Court of Appeals’ interpretation improperly rendered the Legislature’s organization nugatoiy by giving no effective meaning to the Legislature’s compartmentalization of ‘allowable expenses’ and ‘replacement services.’ ”).
After determining that the “clear and unambiguous” provisions in MCL 500.3135(3)(c) precluded recovery for replacement services, see Johnson, 492 Mich at 175-176, the Court went on to admonish the Court of Appeals for also misreading the decision in Griffith. It determined that this Court had erred when it applied an “overly expansive reading of Griffith” to conclude that the term “care,” as used in MCL 500.3107(1)(a), encompassed any product, service, or accommodation that was necessitated by the injured person’s injuries— including replacement services. Johnson, 492 Mich at 179. Instead, it held that allowable expenses are conceptually distinct from replacement services and, for that reason, do not include replacement services:
As we noted in Griffith, “the statute does not require compensation for any item that is reasonably necessary to a person’s care in general.” Griffith, 472 Mich at 534 (emphasis added). Rather, such care “must be related to the insured’s injuries.” Id. In Griffith, the plaintiffs food costs were not allowable expenses because “if Griffith had never sustained, or were to fully recover from, his injuries, his dietary needs would be no different than they are now.” Id. at 536. Accordingly, allowable expenses do not include expenses for products or services that are required after the injury in a manner indistinguishable from those required before the injury. Those services are not properly characterized as “related to the insured’s injuries.”
Services that were required both before and after the injury, but after the injury can no longer be provided by the injured person himself or herself because of the injury, are “replacement services,” not “allowable expenses.” They are services “in lieu of those that, if he or she had not been injured, an injured person would have performed.. . for the benefit of himself or herself....” MCL 500.3107(1)(c). Thus, contrary to the Court of Appeals’ interpretation of Griffith’s definition of “care,” replacement services is not “merely one category of allowable expenses”; rather, allowable expenses and replacement services are separate and distinct categories of PIP benefits. [Johnson, 492 Mich at 179-180.]
Accordingly, Griffith established that a product, service, or accommodation will not be for an injured person’s “care,” as that term is used in MCL 500.3107(1)(a), unless the need for the product, service, or accommodation was necessitated by the injured person’s injuries. Griffith, 472 Mich at 535. However, under the decision in Johnson, even when a particular service is necessary because of the injured person’s injuries, that service will not constitute an allowable expense if the service was “required both before and after the injury, but after the injury can no longer be provided by the injured person himself or herself. .. .” Johnson, 492 Mich at 180. In such cases, the service is a replacement service subject to the provisions of MCL 500.3107(1)(c) and cannot serve as the basis for recovery under MCL 500.3135(3)(c). Johnson, 492 Mich at 180, 197.
E. DOUGLAS
Finally, in Douglas, our Supreme Court further refined its understanding of the term “care” to provide guidance on the types of services that will constitute an allowable expense under MCL 500.3107(l)(a). In that case, an unidentified driver struck James Douglas while he was riding his bicycle. Douglas, 492 Mich at 249. Douglas suffered a severe closed head injury from the hit-and-run accident, which led to psychiatric problems including difficulty with his short-term memory, impulsivity, and two suicide attempts. Id. at 250. Douglas eventually sued the insurer assigned to cover his claims for failing to pay PIP benefits. Id. at 250-251.
On appeal, our Supreme Court had to consider whether and to what extent Douglas was entitled to compensation for the attendant care services that his wife performed, and, specifically, whether his wife’s services were allowable expenses under MCL 500.3107(1)(a) or, in the alternative, replacement services under MCL 500.3107(1)(c). Douglas, 492 Mich at 255. Citing its decision in Griffith, the Court first reemphasized that MCL 500.3105(1) imposes an obligation to pay benefits on an insurer only when two threshold causation requirements are met: (1) the claimed benefits must be “ ‘causally connected to the accidental bodily injury arising out of an automobile accident’ ” and (2) the injury itself must arise from the ownership, operation, maintenance, or use of a motor vehicle. Douglas, 492 Mich at 257, quoting Griffith, 472 Mich at 531. It then went on to note that MCL 500.3107(1)(a) and MCL 500.3107(1)(c) impose further restrictions on the benefits. Douglas, 492 Mich at 257-258. These additional limits were important, the Court explained, because the allowable-expense benefit was subject to the one-year-back rule, see MCL 500.3145(1), and an injured person could only recover for replacement services for the first three years after the accident. Douglas, 492 Mich at 258-259. Given that Douglas’s wife provided her services long after the expiration of the three-year period, Douglas would only be entitled to compensation for those services that qualified as allowable expenses and then only for those expenses incurred after May 31, 2004. Id. at 259.
Turning to what constitutes “care” for purposes of MCL 500.3107(1)(a), the Douglas Court reaffirmed that “care” has a limited meaning: “although services for an insured’s care need not restore a person to his preinjury state, the services must be related to the insured’s injuries to be considered allowable expenses.” Douglas, 492 Mich at 260. The Court then approvingly cited cases from this Court for the proposition that the no-fault act does not limit who “may perform what is otherwise an allowable expense” under MCL 500.3107(1)(a). Douglas, 492 Mich at 261, citing Van Marter v American Fidelity Fire Ins Co, 114 Mich App 171; 318 NW2d 679 (1982), and Visconti v Detroit Auto Inter-Ins Exch, 90 Mich App 477; 282 NW2d 360 (1979). Thus, MCL 500.3107(1)(a) can apply to services performed by a family member:
A subsequent Court of Appeals panel applied Visconti and allowed the plaintiff to recover no-fault benefits when a family member was “required to serve his meals in bed, bathe him, escort him to the doctor’s office, exercise him in conformity with his doctor’s instructions, assist in formulating his diet, administer medication, and assist him with speech and associational therapy.” The Court also held that, even though the family member who provided these services was not a licensed medical care provider, “[t]he statute does not require that these services be supplied by ‘trained medical personnel’.” In other words, while the no-fault act specifies and limits what types of expenses are compensable, it places no limitation on who may perform what is otherwise an allowable expense. [Douglas, 492 Mich at 261, quoting Van Marter, 114 Mich App at 180.]
However, the Court clarified that allowable expenses “cannot be for ‘ordinary and necessary services’ because ordinary and necessary services are not ‘for an injured person’s care, recovery, or rehabilitation.’ ” Douglas, 492 Mich at 262.
Examining the facts applicable to its case, the Court held that Douglas was potentially entitled to compensation for his wife’s services:
The Court of Appeals rejected defendant’s claim that Mrs. Douglas only provided replacement services and compared the claimed supervision with this state’s workers’ compensation caselaw that allows “on-call” supervision, even when the care provider is pursuing other tasks while on call. We affirm the result of the Court of Appeals on this issue and hold that defendant is not entitled to a verdict of no cause of action on the basis of its claim that Mrs. Douglas only provided replacement services because there was testimony given at trial that at least some of the services she said she had provided were consistent with the requirement of MCL 500.3107(l)(a) that allowable expenses be for an injured person’s care as necessitated by the injury sustained in the motor vehicle accident. For instance, even if Mrs. Douglas’s claimed supervision of plaintiff does not restore plaintiff to his preinjury state, testimony given at trial indicates that arguably at least some of this claimed supervision was for plaintiffs care as necessitated by the injury sustained in the motor vehicle accident and not for ordinary and necessary services that every Michigan household must undertake. Accordingly, defendant is not entitled to relief on the claim that none of Mrs. Douglas’s claimed services could be considered attendant care services within the meaning of MCL 500.3107(l)(a). {Douglas, 492 Mich at 263-264.][ ]
The decision in Douglas clarified that an injured person may be entitled to compensation for services necessitated by his or her injury and performed for his or her care as an allowable expense under MCL 500.3107(1)(a) and that such services may be compensable even when performed by a family member; the Court, however, reiterated that the services provided by a family member must be carefully distinguished from the types of services that constitute a replacement service under MCL 500.3107(1)(c). Douglas, 492 Mich at 262.
F. SYNTHESIZING GRIFFITH, JOHNSON, AND DOUGLAS
Examining the decisions in Griffith, Johnson, and Douglas together, it is evident that there are several criteria that must be established before a particular product, service, or accommodation “for an injured person’s care, recovery, or rehabilitation” will be compensable as an allowable expense under MCL 500.3107(1)(a). The claimed benefits must first be “ ‘causally connected to the accidental bodily injury arising out of an automobile accident’ ” and the injury itself must arise from the ownership, operation, maintenance, or use of a motor vehicle. Douglas, 492 Mich at 257, quoting Griffith, 472 Mich at 531. Allowable benefits are, however, limited to those benefits that are for the injured person’s care, recovery, or rehabilitation, which means that the product, service, or accommodation must have been “necessitated by the injury sustained in the motor vehicle accident.” Griffith, 472 Mich at 535. Moreover, even when a particular service is necessitated by the injured person’s injuries, that service will not constitute an allowable expense if the service is an ordinary service that was “required both before and after the injury, but after the injury can no longer be provided by the injured person himself or herself. ...” Johnson, 492 Mich at 180. In such cases, the service is a replacement service that is compensable, if at all, under MCL 500.3107(1)(c), and not under MCL 500.3107(1)(a). Johnson, 492 Mich at 180.
III. APPLYING THE LAW
In this case, it is undisputed that Carroll suffered a closed head injury in an automobile accident and that his head injury prevented him from handling his own estate. For that reason, May has established the requisite causal connections between his services and Carroll’s injuries: the probate court appointed May to serve as Carroll’s conservator because the head injury that Carroll suffered during an automobile accident so incapacitated him that he can no longer manage his estate. See Douglas, 492 Mich at 257. Similarly, because Carroll cannot manage his own estate as a result of his injuries, it follows that May’s services were necessitated by those injuries. Griffith, 472 Mich at 535. Thus, the only remaining question is whether May’s services were for ordinary and necessary services that Carroll would have performed for himself had he not been injured.
Examining the evidence, we conclude that some of May’s services constituted replacement services under MCL 500.3107(1)(c) that were, accordingly, not compensable under MCL 500.3107(1)(a). However, we also conclude that some of May’s services were not replacement services and were otherwise necessary for Carroll’s care within the meaning of MCL 500.3107(1)(a).
The average member of a Michigan household manages his or her own estate on a day-to-day basis; ordinary people pay bills, make deposits, buy and sell property, hire brokers, and otherwise plan for their future needs. Carroll’s need for ordinary household management existed before his accident and continued to exist after his accident. Therefore, to the extent that May performed those services for Carroll, they would be compensable under MCL 500.3107(1)(c), rather than under MCL 500.3107(1)(a), because his need for ordinary household management is not specifically related to his injuries. See Johnson, 492 Mich at 180.
But Carroll also clearly had, and presumably continues to have, additional estate-management needs as a result of his head injury — needs that go far beyond those that he required before he was injured. Carroll requires someone to manage his medical bills, negotiate with medical providers and insurers, and marshal his assets and handle them in a way that will ensure that he can continue to receive the best possible physical and mental care. As our Supreme Court approvingly noted in Douglas, attendant care can include services that the injured person might have performed before he or she was injured as long as those services are not the type of ordinary tasks that a family member might perform for the benefit of the household as a whole. See Douglas, 492 Mich at 261 (noting that allowable expenses include services such as serving the injured person meals in bed, aiding the injured person with bathing, dressing, and exercise, and escorting the injured person to the doctor, administering medication, and assisting with dietary planning and therapies). Although these services will typically be related to the injured person’s physical care, we must emphasize that the Legislature did not define allowable expenses to include only those expenses that involve the direct application of care to the injured person. Rather, the Legislature provided that compensation must be made for “products, services and accommodations” for the “injured person’s care, recovery, or rehabilitation.” MCL 500.3107(1)(a) (emphasis added). That is, the care need not be specifically directed to the care of the injured person’s injury or disability, but rather must be related to his or her peculiar needs as an injured person. See Ire re Geror, 286 Mich App 132, 135-136; 779 NW2d 316 (2009) (holding that a lawyer’s fees were an allowable expense under MCL 500.3107(1)(a) because they were related to ensuring that the injured person received the necessary care).
Consequently, consistent with Griffith, Johnson, and Douglas, if an injured person — by reason of his or her injuries — requires a service in order to ensure his or her proper care, and that service does not amount to a replacement service under MCL 500.3107(1)(c), it will be compensable under MCL 500.3107(1)(a). See Johnson, 492 Mich at 180; Douglas, 492 Mich at 262-264; Griffith, 472 Mich at 535. Here, many of Carroll’s financial-management needs are extraordinary and peculiar to Carroll’s status as an injured person. And, because those needs are beyond those that would ordinarily be performed by a member of the household, they are compensable under MCL 500.3107(1)(a) as a service provided for Carroll’s care, recovery, or rehabilitation.
The probate court correctly determined that some of May’s services as Carroll’s conservator were compensable under MCL 500.3107(1)(a) and some were not because they were for ordinary and necessary household services that were compensable under MCL 500.3107(1)(c) and were incurred more than three years after Carroll’s accident. Moreover, May did not challenge the probate court’s findings concerning the specific services that were compensable and the amount due for those services. Consequently, May has not identified any error warranting relief.
IV CONCLUSION
The probate court did not err when it determined that Auto Club only had to compensate May for those services he performed as Carroll’s conservator that did not amount to replacement services under MCL 500.3107(1)(c). Because May did not challenge the probate court’s specific findings in this regard, we must affirm.
Affirmed. As the prevailing party, Auto Club may tax its costs. MCR 7.219(A).
BECKERING, P.J., and WHITBECK, J., concurred with M. J. Kelly, J.
The Court also examined the proofs necessary to establish that the expenses were reasonably necessary, actually incurred, and amounted to a reasonable charge. Douglas, 492 Mich at 264-277. However, those elements are not at issue in this case. | [
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Moore, J.
This is a bill filed for the benefit of a creditor of Mrs. Comstock, in which it is sought to set aside a deed made by her to her daughter and her daughter’s husband. This deed was made the 22d day of July, 1899. The receiver obtained a judgment against Mrs. Comstock July 12, 1899, and made a levy upon the land in question, August 14, 1899. The circuit judge made a decree, in which he found the land conveyed was worth $4,000, and that it embraced a homestead. He also found Mr. Millner had paid taxes upon the property conveyed, amounting to $722. The decree provides there shall be paid to Mr. and Mrs. Millner the sum of $1,500, the value of the, homestead interest, and to Mr. Millner, for taxes and interest, $451.25. It provides for a sale of the land subject to the payment of these sums. The defendants have brought the case here by appeal. The complainant, after showing its judgment, execution, levy, and the conveyance by Mrs. Comstock to the other two defendants, rested. On the part of the defendants, Mr. and Mrs. Millner, Dr. Griswold, Mr. Tucker, and Mr. Nucomb were sworn. No rebutting proof was put in by complainant. The witnesses for defendants testified the property was worth from $3,000 to $3,500, and was assessed at $4,000.
The testimony discloses that in the fall of 1898 Mrs. Comstock became ill with dropsy. She was living in her own house with her husband. Her daughter and son-in-law, Mr. and Mrs. Henderson, were living with her, and taking care of her. The Hendersons decided to go away. Mr. Millner was a druggist at Big Rapids, and prior to the 22d of July he furnished Mrs, Comstock with drugs and medicines to the amount of $74. He also bought wood for her prior to April, amounting to $82.50. April 1st the Millners moved into the house. Mrs., Millner’s version of the agreement is:
“ I remember when I came to my mother’s home to take care of her. It was the 1st of April, 1899. My mother was sick, and needed care, and mf sister was going away, and there was no one to care for her, and we had to go and care for her. My sister’s name was Eva Z. Henderson. Before me and my husband went there my sister took care of my mother. She had not been ill so long; she had been ill only about six months when we went up there. At the time we went there she was not any better. There was no prospect of her getting any better soon. At that time they called it asthma. Later on they called it dropsy. She required the attendance of a nurse constantly. We never left her alone a moment from the time we went there. She had sinking spells part of the time. When we went there in April, 1899, the talk we, .had with mother — my husband and I — was that, if we would come there, and take care of her, and provide her a home there in that house where she was living, that when she was gone we was to have the home. The home was to be deeded to us at that time, to take effect right along. My husband and I agreed to that. We agreed that when we went down there that we were to provide all the care she needed, and that she was to turn the home over to us in payment for the care we were to give her. She was owing my husband at that time a small amount. It was to wipe that debt out, all back indebtedness, and for all future care. We didn’t know how many years she would be sick, nor she didn’t know. I talked it over with my husband before we agreed. We talked it' over a number of times before we went. Our duties commenced the 1st of April, 1899.”
The testimony discloses that, as a result of the dropsy, Mrs. Comstock was helpless; she became very heavy, weighing 250 or 300 pounds; that her illness made it necessary for the Millners to keep a hired girl, and to keep the house unusually warm all the time; that her meals were served in her room. Mrs. Comstock died in May, 1901, and the Millners paid the doctor’s bills and funeral expenses. The doctor testified, as to Mrs. Com-stock’s condition, that she required constant care; that her limbs enlarged so the skin opened, and discharges were made, which were offensive; and that it would have been difficult to get a nurse who would remain any length of time, and, if one could have been obtained, it would have cost $15 to $25 a week; and that a charge of $10 a week for what Mrs. Millner did would be very reasonable. Mr. Millner paid Mrs. Comstock’s taxes for 1896, $251.53; also the taxes for 1897, $257.19; also the taxes for 1898, ,$181.69.
For the purpose of carrying out the agreement made in April, Mrs. Comstock, on the 22d of July, 1899, made a quitclaim deed of her homestead. At the same time the Millners gave back to her an agreement containing, among others, the following provisions':
“Now, therefore, in consideration of the said conveyance of said lands and tenements to them as aforesaid, the said parties of the first part hereto agree to support, maintain, and clothe her, the said Dolly Ann Comstock, for and during the remainder of her natural life, in as comfortable a manner as she has been accustomed to during the past two years, and furnish her with all necessary medical attendance, medicines, and nurses so long as she shall live, and finally to pay all expenses of her last illness as well as burial and funeral expenses. It is further agreed by said first parties hereto that the conveyance of the property aforesaid shall be and is received by them in full payment and satisfaction of and for all expenses and care heretofore incurred and exercised by them in behalf of her, the said party of the second part hereto.”
There is nothing to impugn the good faith of the parties in entering into this transaction. ’ Mrs. Comstock had the right to do what she would with her homestead. Rhead v. Hounson, 46 Mich. 243 (9 N. W. 267); Cole v. Cole, 126 Mich. 569 (85 N. W. 1098); Eagle v. Smylie, 126 Mich. 612 (85 N. W. 1111). She had a right to prefer one creditor to another. Shay v. Wheeler, 69 Mich. 257 (37 N. W. 210); Belding Sav. Bank v. Moore, 118 Mich. 154 (76 N. W. 368). It is also true that an agreement for future support would not be a sufficient consideration for a conveyance as against creditors, for that would be a provision for the direct benefit of the grantor. Rynearson v. Turner, 52 Mich. 7 (17 N. W. 219). So far, however, as expenses had been incurred or services had been rendered up to the time when this deed was made, we can see no reason why defendants should not receive compensation therefor. Howard v. Rynearson, 50 Mich. 307 (15 N. W. 486); Rynearson v. Turner, supra. There was no dispute but that, prior to the making of the deed, the following items for expenses and services had been incurred by the Millners, made necessary for the proper care of Mrs. Comstock: Drugs and medicines, $74; wood, $82.50; hired help, $80; doctor’s bill, $23; extra work, $48; nursing by Mrs. Millner, $160. There had also been paid by Mr. Millner, on the property, taxes amounting to $239.16 more than was allowed by the circuit judge. The decree should be modified by adding these items to the decree made by the circuit judge, and it is so ordered. Defendants will recover costs of this court.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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-Long, J.
This case was commenced in justice’s court. The bill of particulars shows the claim was for painting certain floors in the kitchens of defendant’s house. The case was appealed to the circuit court, and there tried before a jury; the court directing a verdict in favor of defendant. The plaintiff brings error. His claim is that the court was in error in taking the case from the jury.
The facts appear to be that the plaintiff had a contract from one Youngberg to do the work under him, as a subcontractor, in painting the house inside and out for defendant. His claim is that this painting of the floors of the kitchens was extra- work and material. It appears from the record that the contract, if it was ever made, was with the wife of defendant, who came to plaintiff and requested that the kitchen floors be painted three coats. The original contract was for one coat of oil on the floors. The court was of the opinion, and so directed the jury, that there was no evidence in the record of any contract with defendant himself to do this extra work, and no authority shown by which his wife was authorized to bind him under the arrangement which the plaintiff claims the wife made with him. Upon an examination of the record, we are satisfied that the court was not in error in directing a verdict for defendant.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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•Hooker, C. J.
The petition in this case is filed by one claiming title to the E. \ of the N. E. ¿ of a section of land in Bay county, to vacate two decrees for taxes, for the years 1890 and 1891, respectively, under which the lands were bid in for the State in 1893, and subsequently sold and conveyed to the defendant Hoffman by the auditor general. A decree was made in substantial accord with the prayer of the petition, and defendant Hoffman has appealed.
The land in question was unoccupied until Hoffman bought it, when he went into possession. It appears that, at the time of the assessment, the north 40 acres belonged to a copartnership composed of Archibald G. Lindsay and Patrick M. Gamble, and that they were residents of this State, though not of Bay county. The south 40 acres belonged to parties residing in New York, named Heath and • Bossitier. Both 40-acre parcels were assessed together as the E. -I o£ the N. E. £, as “unknown,” both years; and, the taxes being unpaid, proceedings to enforce collection were commenced by the auditor general in the usual way. A subpoena was issued upon the filing of the petition for the tax of 1890 to Heath and Rossitier, which was served upon one Eitzhugh, their agent. Notice was also published as prescribed by law. This was under Act No. 195 of the Public Acts of 1889. Upon the filing of the petition for the tax of 1891, an order of hearing was made on October 3, 1893, for the 10th of November following, and this was duly published. This was under Act No. 206 of the Public Acts of 1893. In each case counsel appeared for Heath and Rossitier, and made a successful contest against portions of the taxes levied on the E. of the N. E. ¿, and a special decree was rendered in each case setting aside, as invalid, a portion of the tax, and determining the amount of the valid tax, and these were entered in the margin. Afterwards the general decrees were made upon the petitions, and these referred to and by reference included the special decrees. The lands were sold in 1893 upon both decrees, and came to the possession of Hoffman through the purchase from the State by deed dated November 20, 1895.
The petitioner, Tromble, claims to have acquired title to both parcels. As to the north 40, he received a deed from Lindsay, as survivor of Lindsay & Gamble, dated May 24, 1897, recorded July 14, 1897. This deed states that “the lands above described are part of the estate of the late firm of Lindsay & Gamble, and said Lindsay is required to make this sale to obtain funds from which to meet the obligations of said copartnership. ” It is claimed, on behalf of the petitioner, that Heath and Rossitier had a title to the south 40, but defendant insists that an undivided one-eighth interest was lacking. In January, 1900, they deeded to petitioner whatever title they had.
The petitioner had early notice of Hoffman’s'claim, for he saw him at work upon the premises, and ordered him to desist, and sent him a letter warning him not to tres pass upon any of the lands of Heath and Rossitier, in January, 1896, signed by himself as their agent. In June, 1898, petitioner brought ejectment against Hoffman in the circuit court for the county of Bay, in which he joined with himself, as parties plaintiff, both Heath and Rossitier, and alleged in the declaration that the plaintiffs had owned the land in question in fee' simple for upwards of five years prior to June 18, 1898. Before the disposition of this case, and on January 17, 1900, he filed a bill against Hoffman, and sought an injunction to restrain him from cutting or selling timber from the premises. An answer in the nature of a cross-bill was filed, setting up defendant’s title, and this resulted in an amendment of the bill, in which a number of defects were alleged against defendant’s title. This was after an order pro confesso for want of an answer to the cross-bill had been set aside.
While the motion to set aside the order pro confesso was pending, petitioner filed two petitions for leave to file bills of review in the tax proceedings referred to, in which he alleged upon oath that he became the owner of the original title to the north 40 on May 24, 1897, and of the south 40 on June 15, 1900. Upon the hearing of these petitions, they were dismissed. Soon afterwards the petition in this proceeding was filed, and notice that the same would be brought o'n for hearing on January 14,1901, was served, with a copy of the petition, upon defendant Hoffman, and presumably upon the auditor general. Hoffman answered, and, before the matter was heard, petitioner filed an application with the auditor general asking that the defendant’s tax title be canceled. This was afterwards denied. Proofs were takep. in the chancery case, and at the hearing of said cause it was determined to submit the proceedings upon the petition at the same time; the proofs in the chancery case being used in connection therewith by stipulation.
Did the court get jurisdiction to adjudicate and foreclose the tax lien on the north 40 for the tax of 1890? The entire 80 was assessed as “unknown.” When the petition was filed, a subpoena was issued, directed to Archibald G. Lindsay and Patrick M. Gamble, describing other lands, but not this parcel. It was served on one Henry Gamble. . The usual notice was published. Now comes an alleged owner, who attacks this tax title on the ground that, Lindsay & Gamble, his grantors, being residents of the State, a subpoena describing these lands should have issued, and been served upon them. The effect of this claim would be to compel the prosecuting attorney to determine at his peril whether the owner of each tract of land is a resident of this State or not, and, if he is, obtain service of process upon him. Failing to do so as to a parcel would be fatal to the jurisdiction. This land was assessed as unknown, and we must assume that it was unoccupied, as the proofs show it to have been. We must also presume that the owner was not known by the supervisor, and that the assessment was regular.
It is urged that, under the law of 1889, a failure to serve a subpoena upon the delinquent taxpayer or the actual owner was fatal to the jurisdiction of the court as to the land owned by such persons, and that notice by publication would not cure the defect. We are cited to the following cases in support of this: Taylor v. Deveaux, 100 Mich. 581 (59 N. W. 250); Fowler v. Campbell, 100 Mich. 398 (59 N. W. 185); Coyle v. O’Connor, 121 Mich. 596 (80 N. W. 571). An examination of those cases will show that in no one of them was the land assessed as unknown or nonresident, but inferably, at least, it was assessed to residents. In re Wiley, 89 Mich. 58 (50 N. W. 742), is a Case which has some bearing upon this question. The land in that case was assessed to the apparently resident owner, and subpoena was issued against and served upon him; but before its issue he had sold the land, and the petitioner had become the owner. He attacked the jurisdiction upon the ground that subpoena should have issued against and been served upon him. The court held otherwise, saying that the “delinquent taxpayer who is a resident of this State ” meant persons against whom the tax was assessed, whose names appeared upon the assessment roll. The following quotation is pertinent in this connection:
“The tax law of 1889, under which this proceeding is had, nowhere provides any compensation for the examination of the records in the office of the register of deeds to determine in whom the title of record of the lands returned delinquent for taxes stands, and against whom subpoenas upon the filing of the petition shall issue. It does not provide any compensation to any person for making such searches. It simply provides that the register shall issue a subpoena directed to each delinquent taxpayer who is a resident of this State. The legislatüre evidently intended that the subpoena should issue and be served upon the person against whom the tax was assessed, and whose name appeared upon the tax roll for that year. It evidently was not the intention of the'legislature to make the jurisdiction of the court depend upon the service of the subpoena in that class of cases where the lands were not occupied and were assessed as nonresident, as there would be no means by which the register of the court could determine the real owner of the premises by any search which he might make in the office of the register of deeds, as it frequently happens that deeds are not recorded for months, and sometimes for years, after their execution and delivery. The use of the words ‘ delinquent taxpayer who is a resident of this State ’ undoubtedly was intended to apply to persons against whom the tax was assessed, whose names appear upon the assessment roll. This section (54) gives the court jurisdiction to enter a decree against such persons, and makes the publication of the notice equivalent to personal service.”
Upon the face of the record, the land was assessed to unknown parties, if not nonresidents. In such a case jurisdiction was obtained by publication, under the interpretation of the statute quoted, and the three cases cited have no application. See, also, Nowlen v. Hall, 128 Mich. 274 (87 N. W. 222), for a similar case. This is 'conclusive of the jurisdictional question in the proceedings to enforce the tax of 1890 upon the north 40.
What has been said of the tax of 1890 is true of that of 1891, in part. The record shows that Heath and Rossitier were represented by attorney, and made objections to the taxes upon the E. £ of the N. E. i, hut nothing indicates that Lindsay or Gamble appeared. We understand that the validity of the proceedings for the foreclosure of the tax of 1891 is not attacked upon the same ground. These proceedings were commenced under the tax law of 1893, which does not contain the requirement of personal service of a subpoena, but provides for publication of an order as notice of the pendency of the proceeding. This was done.. The defect complained of in this proceeding is that the decree was entered at the same term at which the order was made. Section 62 of the tax law of 1893 prescribes the f.orm of the order, which requires all persons interested to file their objections on or before the first day of the term at which the notice fixes the hearing of the petition. We have held in two cases that an order made in term, fixing a time for hearing during the same term, does not confer jurisdiction. Ledyard v. Auditor General, 121 Mich. 56 (79 N. W. 918); Roberts v. Loxley, 121 Mich. 63 (79 N. W. 978).
This would be conclusive as to this title, were it not for other questions raised by the defendant; e. g., he claims that the appearance of counsel who contested the tax upon this 80-acre parcel, which included the 40 under discussion, conferred jurisdiction upon the court, and renders immaterial questions relating to process. It is undeniable that, if it can be said that Lindsay & Gamble appeared and contested these taxes, defendant is correct, and jurisdiction was acquired, whether process was regular or not.
It is claimed on behalf of the defendant that it must be assumed that the appearance of Mr. McHugh was for Lindsay & Gamble. Manifestly, if it was not, there was no waiver of jurisdiction, unless we are to say that any volunteer may waive process for another, which cannot be true. Had Mr. McHugh professed to appear for Lindsay & Gamble, who should then be called upon to decide whether the party, on discovery of that fact, might not move in the same proceeding to vacate the decree; but a reference to the objections filed shows whom this attorney appeared for, and the names of Lindsay & Gamble are not among them-. The names of Heath and Rossitier are; and appended to the objections is a list of lands in which he appears for Heath and Rossitier, and this 80-acre lot is included. So, on the face of the record, Lindsay & Gamble did not appear, and therefore cannot be said to have waived the defects in process through the appearance of counsel.
Counsel for the defendant seeks to break the force of this objection by the claim that, inasmuch as Lindsay & Gamble did not ask the board of review to have this assessment corrected, neither they nor their grantees can now complain of it. We may safely treat this as so, for the purpose of the case, and say that the tax may not be held invalid by reason of the error- in assessment. It is not the erroneous assessment, but the failure to bring in the owner, who was entitled to service of process, though he might not complain of the manner in which his land was listed. The appearance for Heath and Rossitier was ineffective to waive this jurisdictional question for Lindsay or Gamble.
' From the foregoing it will be seen that the decree under which the defendant claims title on the sale for the tax of 1891 was void as to the north 40 for want of jurisdiction, and that the same appears on the face of the record, as the court will take judicial notice of the times of holding its terms. Ledyard v. Auditor General, 121 Mich. 56 (79 N. W. 918); Roberts v. Loxley, 121 Mich. 63 (79 N. W. 978). It is therefore subject to attack in collateral proceedings. The same cannot be said of the south 40. In each case Heath and Rossitier saw fit to appear and contest the tax, which gave the court jurisdiction, although the process may have been defective or not served, and notwithstanding the hearing at the same term that the order was made.
Counsel for the petitioner attacks the decree upon another ground, viz., that the amount decreed was in each case written in after the decree was signed, by some officer of the county treasurer’s office, and based iipon computations made after the decree was signed. The testimony is conflicting on this point, but the testimony of the judge and his clerk indicates that the contested taxes were determined and announced and entered on the margin by the judge, or at his direction, and that, before the final decree was signed, all amounts had been entered by some one. Other witnesses thought that the entries were made in the treasurer’s office, and after final decree was made and signed. The learned circuit judge who heard the testimony found that the amounts were entered after the decree was made, and we think that the finding of an irregularity in a decree by the tribunal which made it should not be reversed upon a question of fact in a case where the testimony is so conflicting as in this.
The statute forbids the setting aside a sale after the lapse of one year from confirmation. In Benedict v. Auditor General, 104 Mich. 269 (62 N. W. 364), we held that, where the proceedings were absolutely void for want of jurisdiction, section 70 of the tax law did not preclude a review of the question on petition to vacate the decree. In the case of Berkey v. Burchard, 119 Mich. 101 (77 N. W. 635, 79 N. W. 908), it was held that, under section 70 of the tax law of 1893, “leave to file a bill of review should not be granted in a tax proceeding after confirmation of the sale, unless a total want of jurisdiction to make the decree is shown, or one of the two causes mentioned in the statute exists. ” In the case of Spaulding v. O’Connor, decided at the same term, and reported in 119 Mich. 45 (77 N. W. 323), it was clearly indicated that “a sale will not be set aside after confirmation, either on petition or bill of review, except for one of the reasons specified, or (under Benedict v. Auditor General) for defects going to the jurisdiction.” See, also, Wilkin v. Keith, 121 Mich. 74 (79 N. W. 887).
It is said that the decision in the case of Morgan v. Tweddle, 119 Mich. 350 (78 N. W. 121), followed by First Baptist Church v. Roberts, 120 Mich. 704 (79 N. W. 910), excepts from the effect of section 70 cases where an attempt is made to show that the decree was irregularly-made. We find it unnecessary to pass upon this question.
It is undoubtedly within the power of a court of chancery to review its own action, in a direct proceeding, after the lapse of more than a year, in all ordinary cases; and this case is no exception, unless the tax law has made it so. In putting this provision into the law.(Act No. 206, Pub. Acts 1893, § 70), the legislature has attempted to curtail the power of review in this class of cases. As we pointed out in Spaulding v. O’Connor, a technical construction would not have permitted us to set aside sales by this method even where there was an absence of jurisdiction, and would require us to treat it as an absolute bar as to irregularities, except in the two cases mentioned in the statute, leaving parties to seek other relief.
But if these cases are overruled by the later cases cited, it does not follow that the decree should be vacated. The decree is not void upon its face, and, while it may be attacked in a direct proceeding, it must have all of the verity of a decree until it is attacked. See Wilkin v. Keith, 121 Mich. 73, 74 (79 N. W. 887). An analogous question was discussed in Peninsular Sav. Bank v. Ward, 118 Mich. 93 (76 N. W. 161, 79 N. W. 911). Being voidable merely, the court cannot question its validity in a collateral proceeding; nor is it bound to set it aside in a direct one, unless justice demands it. In the case of Cook v. Hall, 123 Mich. 378 (82 N. W. 59), it was sought to set aside decrees for defects in their nature jurisdictional, some of which must have appeared from records of the court, if not in the case, and therefore subject to collateral attack. But relief was denied upon the ground of laches, two years having elapsed after the petitioner learned of the sale. Mr. Justice Grant alluded to petitioner’s disregard of the known fact that his lands were assessed and taxed, and that, if payment of the taxes was not made, they would be, and were, under the law, sold. , He allowed others to acquire interests in the same in reliance upon this sale, and no equity was shown justifying the vacating of the sale. This case was followed by Cook v. Auditor General, 124 Mich. 430 (83 N. W. 96), where the court exercised its discretion by refusing to compel a cancellation of the deed by the auditor general.
In Spaulding v. O’Connor, supra, the rule was recognized in the following language:
“ The practice of -setting aside sales upon foreclosure is not a statutory one, but is done in the exercise of a power essentially equitable, inherent in the court of chancery. Its exercise is not limited to cases where there is irregularity, but, where the sale is not void, special circumstances appealing to equitable considerations must exist * * * Not only must there be equitable considerations to move the court, but there must also be an absence of laches.”
In the present case the persons who owned these lands knew that they would be taxed, and sold if the taxes were not paid. The owners of the south 40 appeared and contested the tax, by counsel, and presumably knew of the decree. Yet they took no steps to save the land or vacate the decree. The owners of the north 40 paid no attention to it, and, if the deed correctly states the consideration, sold it to the petitioner for $1. What was the petitioner’s relation to these lands ? He claims to have had some kind of an arrangement with the owners in regard to these lands before the State bought them. It was his duty to pay the taxes, in certain contingencies. He knew that they were taxed, knew that they were returned in time to redeem them, knew that they were purchased by the State, and corresponded with the auditor general about them. Subsequently he knew that Hoffman claimed them, and wrote to him and saw him in relation to them. He then bought the original title himself, and laid claim to them, and finally took legal proceedings, but not in the first instance to set aside this decree. He began ejectment, claiming the tax title to be void. He filed a bill upon the same theory. Later, he filed a bill of review to set aside the decree, and after this was dismissed he applied to the auditor general for cancellation. All of these proceedings sought to avoid the payment of the small tax which was levied upon these lands. Finally, as a last resort, he has filed this petition. He relies upon a technical point, rather than a meritorious one. It is not claimed that this decree is larger than was announced, or that it was for more than a just tax, or for a tax that the landowners ought not to have paid; but one in privity with those parties now appears and asks a court of equity to set aside its own just decree, upon an irregularity that has not affected or changed the decision made, notwithstanding the fact that rights have been acquired and expense incurred in reliance upon it. If it be granted that the power is not taken away by the statute, the fact remains that, as equity may always refuse in such cases to grant relief where laches are shown, so it may refuse relief, and validate the decree, notwithstanding the irregularity, where equity and justice demand it. It is not to be inferred that a void decree would be made valid, but this relief may be refused.
The decree is reversed, and petition dismissed, with costs.
Moore, Grant, and Montgomery, JJ., concurred. Long, J;, did not sit. | [
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] |
Long, J.
The plaintiff company was incorporated under the laws of this State in 1882 for the purpose of manufacturing and generating electricity for commercial and lighting purposes. In 1883 it entered into a contract with the city of Alpena to furnish 16 street lights, and not to exceed 4 additional ones, at a price named. This contract was to continue for two years. From the date of this contract until October 20, 1890, the plaintiff company, by similar arrangement, continued to furnish street lights for the city at a price mutually agreed upon from time to time. During all this time the plaintiff company had no franchise, by ordinance or otherwise, from the city, for occupying its streets, public grounds, and buildings for the purpose of lighting; nor did it have any incandescent works or plant for the purpose of furnishing lighting to the inhabitants of the city.
On October 20, 1890, a franchise was granted, by ordinance, to the Thomson-Houston Electric Company and its assigns, which was duly accepted in writing by said company on October 29th, and was on the same day duly assigned by said Thomson-Houston Electric Company to the plaintiff. It appears from the record here that from the last-named date the city has ’treated the Alpena Electric Light Company as entitled to all the rights and privileges under said franchise. It also appears that, when the plaintiff company acquired the rights and privileges under said ordinance, it had but a small arc-lighting plant, sufficient to carry only about 20 lights,- but that it immediately set about enlarging its works, and continued them until completed, not only extending the arc-light plant, but providing an incandescent plant capable of supplying the inhabitants of the city, then numbering from 10,000 to 15,-000 people. It also appears that under the ordinance the city has from time to time directed the installing of street lights at different points in said city, until the plaintiff company has established some 44 lights, and constructed several miles of light wires.
■ In July, 1894, the common council of the city, by resolution, agreed with the plaintiff company upon a price for street lights for the period of five years from the 1st day of July, 1894; fixing it at $75 per light for all lights then installed, and such as should thereafter be installed. Under this arrangement the company furnished lights both to the inhabitants and the city, and installed such lights as were ordered. At the expiration of this contract the parties were unable to agree upon a price to be paid for lights, and the city thereupon refused to pay for any streetlights after July 1, 1899, unless the plaintiff accepted a contract to supply said lights at $50 per light. The plaintiff company declined to accept this proposition, but has continued to furnish the 44 street lights which it had installed, and presented its claim for payment therefor to the common council at the rate of $75 per light. This the city refused to pay; the city contending that it was not liable for any sum whatever after the 14th day of August, 1899, — that being the date at which it refused to pay for further street lighting.
The court directed the jury to find a verdict for the plaintiff for the sum of $444.56, being the price of furnishing 44 street lights for the period from the 1st day of July, 1899, to the 14th day of August in the same year, at $75 per light, and interest on the same to the date of the verdict. The court also directed the jury that the plaintiff could not recover for furnishing any lights since that date. The plaintiff brings error.
The ordinance passed on October 30, 1890, and which was assigned to the plaintiff thereafter, is called “ Ordinance No. 43;” and under this, and the dealings between the parties since that time, the plaintiff contends:
_ 1. That the city is bound, during the lifetime of plaintiff’s franchise, to take and pay for such street lights as the city ordered installed.
3. That, a reasonable price having once been, fixed by the parties for street lights, it must continue until changed by mutual agreement, or, in case a mutual agreement cannot be arrived at between the parties, it must continue until the dissatisfied party moves in a judicial proceeding to have a price fixed which shall be deemed reasonable.
3. That the plaintiff in this action is entitled to recover a reasonable price for street lights actually furnished from July 1, 1899, to January 1, 1901.
We think the ordinance cannot be so construed. Section 8 of the ordinance requires that:
“ The said electric company shall erect and maintain such street or other lights as the council may from time to time order, and shall furnish such light or lights within a reasonable time from the date of notice received by it of the action of the common council relating thereto: Provided, that the city shall pay the contract rate agreed on by said electric company for all lights so furnished.”
Section 9 provides:
“ The provision of section number one of this ordinance, relative to the permission for the occupancy of the streets, shall not be repealed or consent withdrawn without the consent of said electric company; but the common council hereby expressly reserves the right to amend or change the provisions of this ordinance in all other respects as in their judgment the public good may demand. ”
Section 10 provides :
“ The said electric company may at any time abandon the rights and privileges herein granted, restoring the grounds and streets occupied by them to their former condition : Provided, that six months’ previous notice shall be given to the council by said electric company of their intention to enter on such abandonment, and all city lights shall be maintained by them till the expiration of said six months, providing the council so order. A failure to give such notice, or to maintain the lights ordered by the common council or private individuals, either under the provisions of this section, this ordinance, or by virtue of contract made by said electric company with the city or individuals, shall render the permission and authority as specified in section one of this ordinance null and void at the option of the common council.”
It is apparent from a reading of the ordinance that the price to be paid by the city was left by the ordinance to an agreement or contract thereafter to be entered into between the city and the company; and the mere fact that a contract or contracts had been made fixing the price at $75 per light would not bind the city to continue to take lights atthat rate for the entire lifetime of the franchise, to wit, for 30 years from 1890. The ordinance itself contains no contract or agreement binding the city to take lights at any price for any definite time.
We think the court was not in error in his direction to the jury. The judgment must be affirmed.
The other Justices concurred. | [
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Hooker, C. J.
Dr. Hollywood died on April 9, 1893, and in December of that year an order was made by the Wayne county probate court making his widow an allowance from the estate of $250 per month, to commence from April 9, 1893, and to continue during the settlement of the estate. On October 28, 1895, the probate court made an order that the allowance made for the support of the widow as aforesaid be discontinued and ordered to cease from the date of the latter order. It is claimed on behalf of the executor of the widow that those two orders, taken together, have the force of a judgment, and fix the amount for which she has a valid and incontestable claim against the estate. She has received the sum of $2,703.86, and claims that she is entitled to the payment of the remainder, with interest, and that her claim is one that takes precedence over those of creditors of the estate.
On April 8, 1901, the present administrator being in possession of some funds realized from the sale of real property belonging to the estate, the widow petitioned the court, asking that, because the personal property and rents had been used by a former administrator for other purposes, her full allowance should be paid from the money referred to. A petition was also made on behalf of one who claimed to be a creditor of the estate that this fund be distributed among the creditors of the estate. The two petitions were heard together, and the court made orders directing the payment to the widow of an amount sufficient to complete payment of her allowance at the prescribed rate for the period of one year from the date of the death of the intestate, and the remainder of the money to the creditors. The widow’s allowance after one year was denied upon the ground that the estate had become insolvent, and was insufficient to pay all of this allowance and all of the creditors. The circuit court affirmed the action of the probate court, and the cause is before us on appeal by the widow.
The allowance to a widow beyond the period of a year is within the discretion of the probate judge, except where the estate is insolvent. In the case of Pulling v. Wayne Probate Judge, 88 Mich. 389 (50 N. W. 319), it was held that the proper practice is to make the allowance for a year, after which further allowance is discretionary, and that one applying for it might properly be required to make some showing of her needs and circumstances. See, also, Bacon v. Kent Probate Judge, 100 Mich. 187, 188 (58 N. W. 835). It is contended, however, that a showing is not indispensable, and that the order of October 28, 1895, was, in effect, a further allowance, and that it is not subject to change. On the other hand, it is claimed that there has been nothing paid upon. the allowance beyond the amount falling du'e within the year, and that it was within the power of the probate judge to rescind the order at any time when circumstances showed it to be proper. It is also claimed that the order of the probate judge denying payment was not appealable; but we do not discover that the last-mentioned point was made in the circuit, and we do not pass upon the question.
In Freeman v. Washtenaw Probate Judge, 79 Mich. 390 (44 N. W. 856), it was said that “these orders are in the discretion of the probate judge, and he may modify or rescind them at any time.” See, also, In re Power’s Estate, 92 Mich. 106 (52 N. W. 298); Marskey v. Lawrence, 121 Mich. 580 (80 N. W. 571). The latter case was similar to the present case in some respects, while it differs in others. The intestate died in December, 1897. A valid order made August 31, 1898, in an admittedly solvent estate, gave the widow $12 a week during the progress of the settlement of the estate, or until the further order of the court. On April 22, 1899, the probate court assigned the residue of the estate, and an appeal was taken from this order. The question in the case was whether the widow was entitled to her allowance after the order of distribution of the estate was made by the probate judge, and it was held that she was, under the order as made; and, in answer.to a suggestion of counsel that an allowance might, by a collusive appeal, be indefinitely extended, it was said that the allowance is subject to modification or rescission at any time.
The only question left in the case, as we view it, is whether a rescission can be retroactive in its effect, and deprive a widow of accrued installments which have not been paid. It may be said that the case last cited impliedly holds that an order cannot have retroactive effect. This inference, however, must be based upon the assumption that the order of distribution was tantamount to a modification or rescission of the order of allowance. We think otherwise, however. The case turned upon the meaning of the term “during the progress of the settlement,” etc., and there was no indication of an intention to curtail the allowance, but, rather, to give such an amount as the order of allowance entitled her to, under the law. In this case the claim is made that the estate was insolvent. If that was so, an allowance for more than a year was forbidden by law. See 3 Comp. Laws, § 9322, subd. 2. Had the probate judge known that it was insolvent, he would not have made the order for more than a year; but it was not then known, and could not have been; and there would be a manifest propriety in modifying or rescinding* an order under such circumstances. The order relied upon, if enforced, would give to the widow the sum of $10,500 and upwards, with interest. This would be manifestly unjust to creditors of an insolvent estate, if not to children in a case of an ordinary estate, though solvent, and would call for a modification by the court upon the subject being brought to its attention; and we think it subject to such modification or rescission at any time before payment.
The order of the circuit court is affirmed, with costs."
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Montgomery, J.
The plaintiff, who, at the time of receiving the injuries hereinafter referred to, was a little less than 16 years of age, was employed by defendants in their harness-making establishment. He worked in the harness, department about a week. He then went into the stock room, and worked for a few days, and, on the 23d day of February, 1899, he was sent into the collar department, where he was instructed by the foreman to cut long straw with a hand machine, and lay it in bundles, and, when short straw accumulated, he was directed to run it through an Ohio feed cutter. He had never operated a machine of' that kind before that day. He used it about half an hour in the forenoon, and again about half an hour in the after noon. The third time he attempted to make use of it, the straw got clogged in the bin, and he attempted to shove the straw away from the machine with his left hand, and, while pushing the straw away, his hand got caught in the knives, and cut off. The circuit judge directed a verdict for the defendants, on the ground that the danger was obvious.
The case is certainly very near the border line. The testimony of the "plaintiff shows that he knew that there were knives in the machine, and that, if he got his hand in the machine far enough to come in contact with them, he would be injured. There would be no difficulty in saying, therefore, that, so far as the fact of the machine being dangerous is concerned, the failure to warn the plaintiff of this danger could not be availed of as a ground for recovery; for, where it appears affirmatively that the plaintiff, though of tender years, knew of the danger, and appreciated it, no recovery can be based upon a failure to give the warning. See Borck v. Nut Works, 111 Mich. 129 (69 N. W. 254); Monforton v. Brick Co., 113 Mich., at page 43 (71 N. W. 588). The precise question in this case, however, is whether the plaintiff should have been instructed as to the manner in which this work might be done with safety. It is the theory of the defendants that he might either have stopped the machine, or have used a shovel to clear out the obstruction. But the plaintiff testified that no one told him not to use his hands, that no one told him what to do in case the straw would not go through, and that no one told him to stop the machine before he went into the bin to shovel. It is true, he testified, ‘ ‘ I knew, as anybody would, that if I got them [his fingers] in far enough, they would be cut.”We think, upon the turning point in the case, that the question is ruled by Allen v. Jakel, 115 Mich. 484 (73 N. W. 555). In that case, the plaintiff had been warned not to get her hands in the rollers; but it was said:
‘ ‘ The only question in the case would seem to be whether the defendant was in duty bound to give her in structi on as to how to do this work, or might leave her to learn it from observation and experience, inasmuch as it was obvious that the hand would be injured if it got into the rollers. It may be that no further instruction was required; but this would depend upon the character of the work, and the opportunities she had enjoyed for understanding how to do it safely. It sometimes happens that the dangers of a tool or machine are obvious, yet some methods of use are much safer than others. Skill and dexterity are essential, and prudence dictates that inexperienced persons, especially young children, should have some instruction, or opportunity to learn the proper way, before they are allowed to attempt to use them. Whether this was such a machine, and whether the opportunity for observation was all of the instruction reasonably necessary, were questions to be submitted to the jury, not being sufficiently clear to warrant us to dispose of them as questions of law arising on undisputed facts.”
So we think that in the present case the question as to whether reasonable care required that instruction should be given to this plaintiff as to the manner of doing the work was a question for the jury. This question should be determined with full recognition of the fact that he knew that it was dangerous to put his hands in this machine where they would be likely to come in contact with the knives. No testimony was offered on behalf of the defendants in the present case. It is proper to say that if it should appear that plaintiff was instructed to stop the machine before attempting to remove the straw when it accumulated, or to use the shovel in such an emergency, or if it could be said that using the hands while the machine was in motion was so palpably negligent that the boy should himself know that he should not have done so, but should have used a shovel or other tool, or stopped the machine, which he had been instructed how to do, there would be no ground upon which a recovery could be had.
The judgment will be reversed, and a new trial ordered.
Hooker, C. J., and Moore, J., concurred with Montgomery, J. | [
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] |
Moore, J.
Henry Krimmel was a lineman in the employ of defendant. June 30, 1899, a pole upon which he was at work broke, and he received injuries from which he afterwards died. This suit is brought to recover damages for his death. The trial judge directed a verdict in favor of defendant. The case is brought here by writ of error. The only question involved is whether the case should have been submitted to a jury.
The record discloses that plaintiff’s intestate was nearly 21 years of age, and had been in the employ of defendant nearly 4 years. The last year his work was that of lineman. Prior to October, 1895, the Peninsular Company, which company the defendant succeeds, had its wires upon a cedar pole near the corner of State street and Woodward avenue. A street railway was constructed in State street, and the street, between curb and curb, had been widened. The railway company strung its wires upon hollow, wrought-iron poles, about 22 feet high, and about 6 inches in diameter. When the street was widened, the cedar pole would not be near the curb; and, to get rid of some of the poles, the board of public works required the electric-light companies and the street-railway companies to join in the use of poles at certain locations, one of which was near State street and Woodward avenue. In order to carry the electric wires safely across Woodward avenue, it was necessary to make the pole higher, so that these wires should not come in contact with the trolley wires.
In October, 1895, the foreman of the Peninsular Company went to Vinton & Co., and selected seasoned oak, which that firm had in stock, for about two dozen extensions of poles. The oak poles were turned at the bottom to a size that would enable them to fit snugly in the inside of the wrought-iron poles, with a shoulder upon them that rested on the top of the wrought-iron poles, and projected beyond the shell of the iron, which projection, it was expected, would keep out all water from the joint so made. The pole was then painted black. The pole in question was extended 9 feet 11 inches above the wrought-iron pole, and toward its upper end carried two crosspieces, which, in turn, carried wires.
Upon the day of the accident, Mr. Krimmel ascended the pole, had thrown one leg over the cross-piece, and was proceeding with his work, when the-'wooden part of the pole broke just below the top of the wrought-iron portion of the pole, and he was precipitated to the pavement below. When the pole was examined after the accident, it was found to be affected with dry rot. No inspection of these poles had been made previous to the accident, except what had been made by the linemen in the course of their work. The testimony is that it was part of the duty of the linemen to inspect the poles and wires, and if the defect is such that, with the material they have at hand, they can fix it, it is their duty to do so, and, if they cannot fix it, to report the defect to the office. The testimony is that no defect in this pole was ever reported, and the company had no knowledge of any defect in this pole until the time of the accident. It was also in testimony that the practical way to inspect the pole, and determine whether it was safe or not, was for the lineman, before leaving the iron portion of the pole, to reach up and shake the wooden portion of the pole, and that by so doing he could tell whether it was safe for him to go upon the pole; that the only other way to make an inspection was to lift the wooden portion out of the iron post, which was a very troublesome thing to do, on account of the wires being attached to the pole; that, after the accident, an inspection of this character was made of the other poles, and none of them were found to be defective, and no other accident of this kind had ever occurred. It was not shown, by any of the witnesses that Mr. Krimmel, after reaching the top of the iron post, made any test of this pole before going up the wooden portion of it.
It is insisted by counsel for plaintiff that the master must provide the servant with a reasonably safe place to work, and must keep it in a reasonably safe condition, and must, from time to time, make an adequate inspection, and that he cannot escape responsibility by delegating the duty of inspection to an employé, and that as defendant made no inspection, and the pole was decayed, the defendant was liable; citing Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Ouellette v. Alkali Co., 129 Mich. 484 (89 N. W. 436); Essex County Electric Co. v. Kelly, 60 N. J. Law, 306 (37 Atl. 619); and San Antonio Edison Co. v. Dixon, 17 Tex. Civ. App. 320 (42 S. W. 1009). The rule as to the duty of the employer is well settled, but the trouble comes in the application of the rule in a given case. In none of the cases cited by counsel was it shown, as in this case, that it was the custom of the company to have the inspection made by the person injured, before he entered upon his work, and that it was part of his duties to make the inspection. In the case of San Antonio Edison Co. v. Dixon, supra, it was found as a fact by the trial judge that by the exercise of ordinary care, and by testing the pole in the ordinary way, the company could have learned of the defect. In Essex County Electric Co. v. Kelly, supra, it was not shown there was any duty of inspection upon the part of the employé, and there was evidence to show that a proper inspection would have disclosed the defect which caused the injury.
The circuit judge was of the opinion:
“There was no testimony that the defendant knew of this defect. Its opportunity for knowledge was no greater than that of Krimmel himself. Krimmel had been a lineman for a year, as I understand. He had been employed in training for that service for two or three years longer. He was just as well acquainted, and probably more so, with the appearance of this pole, than the Edison Company. In other words, this defect was just as much unknown to the Edison Company, who had been in possession of the pole only a year, as it was to Krimmel; so that the question is whether he could say that the Edison Company should have known of this defect, — a defect of which both he and they were ignorant. That depends upon whether he was in a position to say that the Edison Company should have made an inspection, and satisfied themselves this pole was all right, and whether he had a right to say,
‘ I could rely upon your having made an inspection, and I was not obliged to take the chances of that hidden defect myself.’
.“Sucha rule is applicable in a great many classes of cases, but the question is whether it is applicable here. I do not think it is. You will remember that this post which was defective, and which fell, was in the top of an iron pole, 22 feet from the ground. It is obvious that there could be no effective inspection from the ground. It is obvious that there could be no inspection without some one climbing that iron post at least 22 feet. That is obvious to you, and it must have been obvious to Krimmel. Krimmel knew, then, that the only inspection that could be made would be made by climbing it; and who were the ones that would make that inspection, if it were made? Manifestly, no one but the linemen themselves. Now, of course, if they had been seeking to devise a system of inspection, they would have said, ‘Well, we will go out today and inspect these posts, and send men out for no other purpose than the making of an inspection.’ In that case, of course, while acting as inspectors they would be taking just such risks as inspectors would take. Another way would be to say that ‘inspection will be made when you do your work.’ We are not shown just how often these men had occasion to climb these poles. Manifestly, it was not a matter of everyday occurrence. They went up there when they had to do something with the wires. Now, what they did do in this case, not so much by express notice, but by custom, — and by custom, too, which, it seems to me, Krimmel was bound to know, — was to say, in effect, that ‘ inspection will be made when you do your work.’ I do not see how Krimmel could have lost sight of this. I don’t think he did. So that Krimmel, it seems to me, was by this custom — a custom of the day’s business, of which he must have known- — charged with the duty of making the inspection himself. He knew that before he climbed the pole no one went up before him to-inspect for him and report. He must have known that he never had known of any such inspection, because none had ever been made. So that it seems to me he must have known that that duty was not imposed upon any other official, but rested upon himself. In other words, he was charged with a duty of making an inspection by the circumstances of the case, and by the custom in vogue in the business of the company. That being the case, it seems to me it disposes of everything here. No matter whether that custom was a good custom or a bad custom, it was a custom known to him, and assented to, under the law, by him, and by remaining in the employment.”
In Flood v. Telegraph Co., 131 N. Y. 603 (30 N. E. 196), it is said:
“He [the intestate] knew precisely how the defendant inspected its poles, and the arms on them, and that it was not its custom to cause the arms on the poles to be inspected by some one climbing up the poles; and hence, as to him, carelessness in not inspecting the arms cannot be attributed to it. He knew that no one knew the condition of the arm which broke better than he did; and no one, in fact, knew better than he its sufficiency to bear his weight. If he gave the matter a thought, he knew that he must rely upon his own judgment in placing his weight upon the arm; but, before placing his weight thereon, he ought to inspect it, and see if it was sound, and strong enough to hold him, and he had no right to rely upon the judgment or inspection of any other person. Under such circumstances, it is impossible to perceive how the death of the intestate can be charged to the defendant.”
The case of Roberts v. Telephone Co., 166 Mo. 370 (66 S. W. 155), was one where the plaintiff, a lineman in defendant’s employ, fell by reason of the breaking of a cross-arm upon which he worked in the line of his employment. The linemen were expected to make any inspection of the poles, cross-arms, etc., which was had; and it was held that, under such facts, the rule as to safe place to work did not apply. The court quotes at. length from the Flood Case, and cites other decisions. After showing that the linemen were expected to look after the poles, and that they knew that no other inspection of them was had, the court said:
“This case is clearly distinguishable from the cases cited and relied on by the plaintiff, in this: That in those cases the servant injured was not charged with the duty of ascertaining and repairing the defects in the appliances, but was using appliances furnished him by the master for use in the ordinary course of his employment, while in this case the plaintiff was charged with the duty and engaged in the work of inspecting and repairing the master’s appliances. The plaintiff therefore assumed, by his contract of employment, all the risks incident to the performance of the work upon which he was engaged. The accident was caused by one of those risks. The plaintiff therefore has no claim against the defendant.”
See, also, Bergin v. Telephone Co., 70 Conn. 54 (38 Atl. 888, 39 L. R. A. 192); McIsaac v. Lighting Co., 172 Mass. 89 (51 N. E. 524, 70 Am. St. Rep. 244); Brennan v. Railroad Co., 93 Mich. 156 (53 N. W. 358).
In this case it is not shown that any system of inspection was more practical than the one it was the duty of the deceased himself to make. It is hot shown the situation was such that defendant had any reason to suppose there was any defect in the pole, nor that anything it could do would make apparent to it what would not be apparent to deceased, had he done what it was his duty to do.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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